Exhibit 10.1


 


AMENDMENT
AGREEMENT


 


This AMENDMENT AGREEMENT, dated as of July 16, 2008, (this “Amendment
Agreement”) is made by and among ENERGYSOLUTIONS, LLC, a Utah limited
liability company (“EnergySolutions”), ENERGY SOLUTIONS, INC. (“Parent”),
the lenders party hereto from time to time (“Lender Parties”), CITIGROUP
GLOBAL MARKETS INC. (“CGMI”), as sole lead arranger (the “Arranger”),
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 Term L/C Facility
issuing bank (the “Initial Term L/C Facility Issuing Bank”), and Credit
Suisse (“Credit Suisse”) and JPMorgan Chase Bank, N.A. (“JPMCB”)
as arrangers for the Zion L/C Facility (“Zion Arrangers”).


 


W I T N E S S E T H:


 


WHEREAS, EnergySolutions, ENV Holdings LLC (“Holdco”), certain lenders party thereto (the “Original
Lenders”) 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”), as
amended and restated as of April 13, 2005 (the “Second Amended and
Restated Credit Agreement”), as further amended and restated as of June 7,
2006, as further amended as of June 19, 2006, as further amended as of February 9,
2007, as further amended as of June 26, 2007, as further amended as of November 1,
2007 (as amended, restated, amended and restated, supplemented or otherwise
modified from time to time, the “Existing Credit Agreement”); and


 


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


 


WHEREAS, EnergySolutions intends (i) to
acquire (the “Acquisition”) 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 (ii) in
furtherance thereof, to deliver  to
Exelon irrevocable letters of credit in an aggregate amount not less than
$200,000,000 (the “Zion Transactions”); and


 


WHEREAS, the parties hereto wish to amend and
restate the Existing Credit Agreement in its entirety, on the terms and subject
to the conditions set forth herein, to (i) permit the Zion Transactions,
to provide for a new unfunded letter of credit facility (the “Zion L/C
Facility”) in aggregate principal amount of $200,000,000 and make the other
amendments to the Credit Agreement related thereto as set forth in Annex I
hereto (the “Zion Transactions Amendment”) and (ii) convert the
existing synthetic letter of credit facility (the “Synthetic L/C Amendment”
and, together with the Zion Transactions Amendment, the “Amendment
Transactions”) into an on balance sheet funded letter of credit facility
(the “Term L/C Facility”); and


 


WHEREAS, the parties hereto acknowledge that
pursuant to the Existing Credit Agreement (i) the Zion Amendment
Transactions shall require the written consent of the Majority Lenders and (ii) the
Synthetic L/C Amendment shall require the written consent of the Majority
Lenders and each Synthetic Lender directly effected by the Synthetic L/C
Amendment;


 

















 


NOW, THEREFORE, in consideration of the
premises and the mutual agreements herein contained, the parties hereto hereby
agree as follows:


 


SECTION 1.           (a) 
Certain Definitions. The following terms
when used in this Amendment Agreement shall have the following meanings (such
meanings to be equally applicable to the singular and the plural thereof):


 


“Asset Sale Agreement” shall mean that
certain asset sale agreement by and between ZionSolutions, LLC and Exelon
Generation Company, LLC, dated as of December 11, 2007.


 


“Consent Receipt Date” shall mean July 10,
2008 or such later date as mutually agreed upon by the Administrative Agent and
EnergySolutions.


 


“Synthetic L/C Amendment Effective Date”
shall have the meaning set forth in Section 3(b).


 


“Term L/C Facility Commitment” shall
have the meaning ascribed to such term in the Third Amended and Restated Credit
Agreement.


 


“Zion
Facility Commitment Letter” shall mean that certain commitment letter dated
as of July 2, 2008 by and between EnergySolutions and Credit Suisse,
Credit Suisse Securities (USA) LLC, JPMCB and J.P. Morgan Securities Inc.,
including the annexes thereto.


 


 “Zion
Transactions Amendment Effective Date” shall have the meaning set forth in Section 3(a).


 


(b)           Other Definitions.  Except as otherwise indicated herein, capitalized
terms which are used herein without definition and which are defined in the
Existing Credit Agreement shall have the same meanings herein as in the
Existing Credit Agreement.


 


SECTION 2.                                Amendment
and Restatement of Existing Credit Agreement


 


On the Zion
Transactions Amendment Effective Date, the Existing Credit Agreement shall be
amended and restated to read in its entirety as set forth in Annex I
hereto (as set forth in such Annex I, the “Third Amended and Restated
Credit Agreement”), provided that those provisions and amendments
set forth in the Third Amended and Restated Credit Agreement which give effect
to the Synthetic L/C Amendment shall be amended and restated on the Synthetic
L/C Amendment Effective Date.  By
executing this Amendment Agreement (i) each Lender party hereto hereby
consents and agrees to the amendments and modifications to the Existing Credit
Agreement contained in this Amendment Agreement and in the Third Amended and Restated
Credit Agreement and (ii) to the extent each Synthetic Lender executes
this Amendment Agreement, such Synthetic Lender hereby consents and agrees to (x) convert
its Synthetic Letter of Credit Participation Obligation into a Term L/C
Facility Commitment (as such term is defined in the Third Amended and Restated
Credit Agreement) and (y) all other amendments and modifications to the
Existing Credit Agreement relating to or contemplated by the Synthetic L/C
Amendment.  For the avoidance of doubt,
the execution of this Amendment Agreement shall be effective as consent to the
proposed amendments to the Duratek Loan Agreement as contemplated by that
certain amendment agreement, of even date herewith, by and among Duratek, Inc.,
the lenders party from time to time thereto, CGMI and CNAI.


 


SECTION 3.                                Amendment
Effective Dates


 


(a)           The Zion Transactions Amendment shall
become effective upon the satisfaction or waiver by the Administrative Agent of
(i) the condition precedent set forth in Section 5 hereto, (ii) each



 


2





















 


of the conditions precedent set forth in Section 3.1
of the Third Amended and Restated Credit Agreement and (iii) the
Administrative Agent’s receipt, on or prior to the Consent Receipt Date, of
executed counterparts hereof (which need not be originals) executed on behalf
of the Majority Lenders (the first date as of which all each such conditions
have been satisfied is herein called the “Zion Transaction Amendment Effective
Date”).


 


(b)           In addition to the conditions listed
in Section 3(a) above, the Synthetic L/C Amendment shall become
effective upon the Administrative Agent’s receipt, prior to the Consent Receipt
Date, of executed counterparts hereof (which need not be originals) executed on
behalf of (x) each Synthetic Lender and (y) the Synthetic Issuing Bank
(the first date as of which all each such conditions have been satisfied is
herein called the “Synthetic L/C Amendment Effective Date”).


 


SECTION 4.                                Fees


 


No later than
ten (10) business days after the Administrative Agent has received
executed counterparts hereof (which need not be originals) executed on behalf
of the Majority Lenders, EnergySolutions shall deliver, by wire transfer of
immediately available funds, to the Administrative Agent for the account of
each Lender who, prior to the Consent Receipt Date, delivers an executed counterpart
hereof (which need not be an original) and consents to the Zion Transactions
Amendment, an amendment fee (the “Amendment Fee”) in dollars in an
amount equal to 0.50% of the aggregate principal amount of Loans, Revolving
Credit Commitments and Synthetic Letter of Credit Commitments held by such
Lender under the Existing Credit Agreement. 
For the sake of clarity, all Amendment Fees owed pursuant to this Section 4  shall be due and payable regardless of whether (i) the
condition to effectiveness described in Section 5 hereto has been
satisfied, (ii) the Third Amended and Restated Credit Agreement has or
will become effective and (ii) the Acquisition has been or will be consummated.


 


SECTION 5.                                Conditions
Precedent to Effectiveness


 


This Amendment Agreement shall become
effective when, pursuant to Section 3 above, each of the conditions to
closing specified in the Zion Facility Commitment Letter shall have been deemed
satisfied or waived by the Zion Arrangers.


 


SECTION 6.                                Acknowledgments


 


(a)           Each Loan Party hereby (i) expressly
acknowledges the terms of the Third Amended and Restated Credit Agreement, (ii) ratifies
and affirms, after giving effect to this Amendment Agreement, obligations under
the Loan Documents as amended, amended and restated or modified in connection
with the Third Amended and Restated Credit Agreement and executed by such Loan
Party, (iii) acknowledges, renews and extends its continued liability
under all such Loan Documents and (iv) agrees that each of the Second
Amended and Restated Security Documents secures all obligations of the Loan
Parties under the Loan Documents.


 


(b)           Each Loan Party hereby reaffirms, as
of the Third Amendment Effective Date, (i) the covenants and agreements
contained in each Loan Document to which it is a party, including, in each
case, such covenants and agreements as in effect immediately after giving
effect to this Amendment Agreement and the transactions contemplated thereby,
and (ii) its Guaranty, if any, of payment of the Obligations pursuant to
the Guaranties and its grant of Liens on the Second Amended and Restated Collateral
to secure the Obligations pursuant to the Collateral Documents.


 


3

















 


SECTION 7.                                Reference
to the Effect on the Loan Documents


 


(a)           As of the Third Amendment and
Restatement Effective Date, each reference in the Loan Documents to the “Credit Agreement” or words of like import (including,
without limitation, by means of words like “thereunder,” “thereof” and words of like import) shall mean and be a
reference to the Third Amended and Restated Credit Agreement as amended hereby,
and this Amendment Agreement and the Third Amended and Restated Credit
Agreement shall be read together and construed as a single instrument.  As of the Third Amendment and Restatement
Effective Date, each reference in the Loan Documents to the “Obligations” shall mean and be a reference to the “Obligations”
(as defined in the Third Amended and Restated Credit Agreement).  As of the Amendment Agreement Effective Date,
each reference to the “Loan Documents” or “Collateral Documents,”
as applicable, shall mean and
be a reference, as applicable to the “Loan Documents”
(as defined in the Third Amended and Restated Credit Agreement) or “Collateral Documents” (as defined in the Third Amended and
Restated Credit Agreement).


 


(b)           Except as expressly amended hereby,
all of the terms and provisions of the Existing Credit Agreement and all other
Loan Documents are and shall remain in full force and effect and are hereby
ratified and confirmed until, with respect to the Existing Credit Agreement,
such is superseded by the Third Amended and Restated Credit Agreement and each
other Loan Document that is being amended and restated or otherwise modified in
connection therewith.


 


(c)           The execution, delivery and
effectiveness of this Amendment Agreement shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of the Lenders,
EnergySolutions or the Administrative Agent under any of the Loan Documents,
nor constitute a waiver or amendment of any other provision of any of the Loan
Documents.


 


(d)           This Amendment is a Loan Document.


 


SECTION 8.                                Execution
in Counterparts


 


This Amendment may be executed in any number
of counterparts and by different parties in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.  Signature pages may be detached from
multiple separate counterparts and attached to a single counterpart so that all
signature pages are attached to the same document.  Delivery of an executed signature page of
this Amendment by facsimile, .pdf, electronic mail or other electronic
transmission shall be as effective as delivery of a manually executed
counterpart hereof.  A set of the copies
of this Amendment signed by all parties shall be lodged with EnergySolutions
and the Administrative Agent.


 


SECTION 9.                                Governing
Law


 


THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


 


SECTION 10.                          Headings


 


The various headings of this Agreement are inserted for convenience
only and shall not affect the meaning or interpretation of this Agreement or
any provisions hereof.


 


4

















 


SECTION 11.                          Notices


 


All communications and notices hereunder
shall be given as provided in the Third Amended and Restated Credit Agreement.


 


SECTION 12.                          Severability


 


The fact that any term or provision of this
Amendment is held invalid, illegal or unenforceable as to any person in any
situation in any jurisdiction shall not affect the validity, enforceability or
legality of the remaining terms or provisions hereof or the validity,
enforceability or legality of such offending term or provision in any other
situation or jurisdiction or as applied to any person.


 


SECTION 13.                          Successors


 


The terms of this Amendment Agreement shall
be binding upon, and shall inure to the benefit of, the parties hereto and
their respective successors and assigns.


 


[SIGNATURE PAGES FOLLOW]


 


5

















 


IN WITNESS WHEREOF, the parties hereto have
caused this Amendment Agreement to be executed by their respective officers
hereunder duly authorized as of the date first above written.


 


	
   

  	
  ENERGYSOLUTIONS, LLC,

  
	
   

  	
  a Utah limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Marshall E. Erb

  
	
   

  	
   

  	
  Name:
  Marshall E. Erb

  
	
   

  	
   

  	
  Title:
  Senior Vice President and Treasurer

  
	
   

  	
   

  



 


[signatures continue on the following pages]


 


[ENERGYSOLUTIONS AMENDMENT AGREEMENT]


 

















 


	
   

  	
  ENERGY
  SOLUTIONS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Marshall E. Erb

  
	
   

  	
   

  	
  Name:
  Marshall E. Erb

  
	
   

  	
   

  	
  Title:
  Senior Vice President and Treasurer

  
	
   

  	
   

  



 


[signatures continue on the following pages]


 


[ENERGYSOLUTIONS AMENDMENT AGREEMENT]


 

















 


	
   

  	
  CREDIT SUISSE SECURITIES (USA) LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffrey Cohen

  
	
   

  	
   

  	
  Name:
  Jeffrey Cohen

  
	
   

  	
   

  	
  Title:
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CREDIT SUISSE, CAYMAN ISLANDS 

  BRANCH

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John D. Toronto

  
	
   

  	
   

  	
  Name: John
  D. Toronto

  
	
   

  	
   

  	
  Title:
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shaheen Malik

  
	
   

  	
   

  	
  Name:
  Shaheen Malik

  
	
   

  	
   

  	
  Title:
  Associate

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  J.P. MORGAN SECURITIES INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jack D. Smith

  
	
   

  	
   

  	
  Name: Jack
  D. Smith

  
	
   

  	
   

  	
  Title:
  Executive Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Anthony W. White

  
	
   

  	
   

  	
  Name:
  Anthony W. White

  
	
   

  	
   

  	
  Title:
  President

  



 


[ENERGYSOLUTIONS AMENDMENT AGREEMENT]


 

















 


	
   

  	
  CITIGROUP
  GLOBAL MARKETS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Julie Persily

  
	
   

  	
   

  	
  Name: Julie
  Persily

  
	
   

  	
   

  	
  Title: Managing
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CITICORP
  NORTH AMERICA, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Julie Persily

  
	
   

  	
   

  	
  Name: Julie
  Persily

  
	
   

  	
   

  	
  Title:
  Managing Director

  



 


[ENERGYSOLUTIONS AMENDMENT AGREEMENT]


 

















	
   

  	
   

  
	
   

  	
   

  	
  , as a
  Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 


[This Amendment was executed by authorized
signatories of 284 Lender Institutions.]


 

















 


Annex I


 


Third Amended and Restated Credit Agreement


 


[see attached].


 


[ENERGYSOLUTIONS AMENDMENT AGREEMENT]


 














 


THIRD AMENDED AND RESTATED CREDIT AGREEMENT


 


Dated as of July [  ], 2008


 


among


 


ENERGYSOLUTIONS, LLC


as Borrower


 


ENERGYSOLUTIONS, INC.


as Parent


 


THE LENDERS FROM TIME TO TIME PARTY HERETO


 


and


 


INITIAL ISSUING BANKS NAMED HEREIN


as Lenders and Initial Issuing Banks


 


CITIGROUP GLOBAL MARKETS INC.


as Sole Lead Arranger and Bookrunner


 


and


 


CREDIT SUISSE SECURITIES (USA) LLC AND J.P.
MORGAN SECURITIES INC.


as Lead Arrangers and Bookrunners for the
Zion L/C Facility


 


CITICORP NORTH AMERICA, INC.


as Administrative Agent


 


and


 


CREDIT SUISSE AND JPMORGAN CHASE BANK, N.A.


as Syndication Agents and Documentation
Agents


for the Zion L/C Facility


 


Cahill Gordon & Reindel LLP


80 Pine Street


New York, New York 10005


 

















 


Table of Contents


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE 1.

  
	
   

  
	
  Definitions

  
	
   

  
	
  Section 1.1

  	
  Defined
  Terms

  	
  2

  
	
  Section 1.2

  	
  Defined
  Agreements as Modified

  	
  35

  
	
  Section 1.3

  	
  Computation
  of Time Periods; Other Definitional Provisions

  	
  36

  
	
  Section 1.4

  	
  Accounting
  Terms

  	
  36

  
	
  Section 1.5

  	
  Pro Forma
  Calculations

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2.

  
	
   

  
	
  Loans and Letters of Credit

  
	
   

  
	
  Section 2.1

  	
  The Loans
  and the Letters of Credit

  	
  36

  
	
  Section 2.2

  	
  Manner of
  Borrowing and Disbursement

  	
  38

  
	
  Section 2.3

  	
  Interest

  	
  46

  
	
  Section 2.4

  	
  Repayment

  	
  47

  
	
  Section 2.5

  	
  Fees

  	
  48

  
	
  Section 2.6

  	
  Optional
  Prepayments and Application of Prepayments

  	
  49

  
	
  Section 2.7

  	
  Term L/C
  Facility Loan Reductions

  	
  50

  
	
  Section 2.8

  	
  Mandatory
  Prepayments

  	
  50

  
	
  Section 2.9

  	
  Evidence of
  Debt

  	
  52

  
	
  Section 2.10

  	
  Manner of
  Payment

  	
  52

  
	
  Section 2.11

  	
  Reimbursement

  	
  54

  
	
  Section 2.12

  	
  Pro Rata
  Treatment

  	
  55

  
	
  Section 2.13

  	
  Capital
  Adequacy

  	
  55

  
	
  Section 2.14

  	
  Taxes

  	
  56

  
	
  Section 2.15

  	
  Increase in
  Commitments

  	
  58

  
	
  Section 2.16

  	
  Amendment or
  Waiver of Term L/C Facility

  	
  60

  
	
  Section 2.17

  	
  [Reserved]

  	
  60

  
	
  Section 2.18

  	
  Termination
  and Reduction of Commitments

  	
  60

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2A.

  
	
   

  
	
  Section 2A.1

  	
  Manner of
  Borrowing and Disbursement

  	
  61

  
	
  Section 2A.2

  	
  Repayment

  	
  62

  
	
  Section 2A.3

  	
  Fees

  	
  63

  
	
  Section 2A.4

  	
  Pro Rata
  Treatment

  	
  63

  
	
  Section 2A.5

  	
  Amendment or
  Waiver of Zion L/C Facility

  	
  64

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3.

  
	
   

  	
   

  	
   

  
	
  Conditions Precedent

  
	
   

  	
   

  	
   

  
	
  Section 3.1

  	
  Conditions
  Precedent to Initial Loans

  	
  65

  
	
  Section 3.2

  	
  Conditions
  Precedent to Each Loan

  	
  68

  



 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4.

  
	
   

  
	
  Representations and Warranties

  
	
   

  
	
  Section 4.1

  	
  Representations
  and Warranties

  	
  68

  
	
  Section 4.2

  	
  Survival of
  Representations and Warranties, Etc.

  	
  77

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5.

  
	
   

  
	
  General Covenants

  
	
   

  
	
  Section 5.1

  	
  Preservation
  of Existence and Similar Matters

  	
  77

  
	
  Section 5.2

  	
  Business;
  Compliance with Applicable Law

  	
  77

  
	
  Section 5.3

  	
  Maintenance
  of Properties

  	
  78

  
	
  Section 5.4

  	
  Accounting
  Methods and Financial Records

  	
  78

  
	
  Section 5.5

  	
  Insurance

  	
  78

  
	
  Section 5.6

  	
  Payment of
  Taxes and Claims

  	
  79

  
	
  Section 5.7

  	
  Visits and
  Inspections

  	
  79

  
	
  Section 5.8

  	
  Payment of
  Indebtedness; Loans

  	
  80

  
	
  Section 5.9

  	
  Use of
  Proceeds

  	
  80

  
	
  Section 5.10

  	
  Real Estate

  	
  80

  
	
  Section 5.11

  	
  Indemnity

  	
  80

  
	
  Section 5.12

  	
  Interest
  Rate Hedging

  	
  81

  
	
  Section 5.13

  	
  Covenants
  Regarding Formation of Subsidiaries and the Making of Acquisitions

  	
  82

  
	
  Section 5.14

  	
  Maintenance
  of Rating

  	
  83

  
	
  Section 5.15

  	
  Environmental
  Compliance

  	
  83

  
	
  Section 5.16

  	
  Required
  Consents and Transfer of Licenses in Event of Default

  	
  84

  
	
  Section 5.17

  	
  Subordination
  of Intercompany Loans

  	
  85

  
	
  Section 5.18

  	
  Post Closing
  Matters

  	
  85

  
	
  Section 5.19

  	
  [Reserved]

  	
  85

  
	
  Section 5.20

  	
  [Reserved]

  	
  85

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6.

  
	
   

  
	
  Information Covenants

  
	
   

  
	
  Section 6.1

  	
  Quarterly
  and Interim Financial Statements and Information

  	
  86

  
	
  Section 6.2

  	
  Annual Financial
  Statements and Information

  	
  86

  
	
  Section 6.3

  	
  Performance
  Certificates

  	
  86

  
	
  Section 6.4

  	
  Copies of
  Other Reports

  	
  87

  
	
  Section 6.5

  	
  Notice of
  Litigation and Other Matters

  	
  87

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7.

  
	
   

  
	
  Negative Covenants

  
	
   

  
	
  Section 7.1

  	
  Indebtedness
  of Parent, EnergySolutions and Its Subsidiaries

  	
  88

  
	
  Section 7.2

  	
  Limitation
  on Liens

  	
  91

  
	
  Section 7.3

  	
  Amendment
  and Waiver

  	
  91

  
				



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 7.4

  	
  Liquidation,
  Merger, Disposition of Assets

  	
  91

  
	
  Section 7.5

  	
  Limitation
  on Guaranties

  	
  92

  
	
  Section 7.6

  	
  Investments
  and Acquisitions

  	
  93

  
	
  Section 7.7

  	
  Financial
  Covenants

  	
  95

  
	
  Section 7.8

  	
  Affiliate
  Transactions and Restricted Payments

  	
  96

  
	
  Section 7.9

  	
  Real Estate

  	
  97

  
	
  Section 7.10

  	
  ERISA
  Liabilities

  	
  97

  
	
  Section 7.11

  	
  Limitation
  on Preferred Stock

  	
  97

  
	
  Section 7.12

  	
  Negative
  Pledge

  	
  97

  
	
  Section 7.13

  	
  Payment Restrictions
  Affecting Subsidiaries

  	
  98

  
	
  Section 7.14

  	
  Speculative
  Transactions

  	
  98

  
	
  Section 7.15

  	
  Name,
  Jurisdiction of Organization and Business

  	
  99

  
	
  Section 7.16

  	
  [Reserved]

  	
  99

  
	
  Section 7.17

  	
  Permitted Activities
  of Holdings and Parent

  	
  99

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8.

  
	
   

  
	
  Default

  
	
   

  
	
  Section 8.1

  	
  Events of
  Default

  	
  99

  
	
  Section 8.2

  	
  Remedies

  	
  102

  
	
  Section 8.3

  	
  Payments
  Subsequent to Declaration of Event of Default

  	
  103

  
	
  Section 8.4

  	
  Actions in
  Respect of the Letters of Credit upon Default

  	
  103

  
	
  Section 8.5

  	
  Certain Cure
  Rights

  	
  103

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9.

  
	
   

  
	
  The Agents 

  
	
   

  
	
  Section 9.1

  	
  Appointment
  and Authorization

  	
  104

  
	
  Section 9.2

  	
  Interest
  Holders

  	
  104

  
	
  Section 9.3

  	
  Consultation
  with Counsel

  	
  105

  
	
  Section 9.4

  	
  Documents

  	
  105

  
	
  Section 9.5

  	
  CNAI and
  Affiliates

  	
  105

  
	
  Section 9.6

  	
  Responsibility
  of the Administrative Agent and the Collateral Agent

  	
  105

  
	
  Section 9.7

  	
  Collateral
  and Guaranty Matters

  	
  106

  
	
  Section 9.8

  	
  Action by
  the Administrative Agent and the Collateral Agent

  	
  106

  
	
  Section 9.9

  	
  Notice of
  Default or Event of Default

  	
  107

  
	
  Section 9.10

  	
  Responsibility
  Disclaimed

  	
  107

  
	
  Section 9.11

  	
  Indemnification

  	
  108

  
	
  Section 9.12

  	
  Credit
  Decision

  	
  109

  
	
  Section 9.13

  	
  Successor
  Agents

  	
  110

  
	
  Section 9.14

  	
  Delegation
  of Duties

  	
  111

  
	
  Section 9.15

  	
  Additional
  Agents

  	
  111

  
	
  Section 9.16

  	
  Administrative
  Agent May File Proofs of Claim

  	
  111

  
	
  Section 9.17

  	
  Security
  Documents

  	
  112

  



 


iii

















 


	
   

  	
   

  	
  Page

  
	
   

  
	
  ARTICLE 10.

  
	
   

  
	
  Change in Circumstances Affecting Fixed
  Rate Loans

  
	
   

  
	
  Section 10.1

  	
  Eurodollar
  Basis Determination Inadequate or Unfair

  	
  112

  
	
  Section 10.2

  	
  Illegality

  	
  112

  
	
  Section 10.3

  	
  Increased
  Costs

  	
  113

  
	
  Section 10.4

  	
  Effect on
  Other Loans

  	
  115

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11.

  
	
   

  
	
  Miscellaneous

  
	
   

  
	
  Section 11.1

  	
  Notices

  	
  115

  
	
  Section 11.2

  	
  Costs and
  Expenses

  	
  117

  
	
  Section 11.3

  	
  Waivers

  	
  117

  
	
  Section 11.4

  	
  Set-Off

  	
  118

  
	
  Section 11.5

  	
  Binding
  Effect and Assignment

  	
  118

  
	
  Section 11.6

  	
  Accounting
  Principles

  	
  121

  
	
  Section 11.7

  	
  Counterparts

  	
  121

  
	
  Section 11.8

  	
  Governing
  Law and Jurisdiction

  	
  122

  
	
  Section 11.9

  	
  Severability

  	
  122

  
	
  Section 11.10

  	
  Interest

  	
  122

  
	
  Section 11.11

  	
  Table of
  Contents and Headings

  	
  123

  
	
  Section 11.12

  	
  Amendment
  and Waiver

  	
  123

  
	
  Section 11.13

  	
  Entire Agreement

  	
  124

  
	
  Section 11.14

  	
  Other
  Relationships

  	
  125

  
	
  Section 11.15

  	
  Directly or
  Indirectly

  	
  125

  
	
  Section 11.16

  	
  Reliance on
  and Survival of Various Provisions

  	
  125

  
	
  Section 11.17

  	
  Senior Debt

  	
  125

  
	
  Section 11.18

  	
  Obligations
  Several

  	
  125

  
	
  Section 11.19

  	
  Confidentiality

  	
  125

  
	
  Section 11.20

  	
  No Liability
  of the Issuing Banks

  	
  126

  
	
  Section 11.21

  	
  Patriot Act
  Notice

  	
  126

  
	
  Section 11.22

  	
  Performance

  	
  127

  
	
  Section 11.23

  	
  The Platform

  	
  127

  
	
  Section 11.24

  	
  Conversion
  of Currencies

  	
  128

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12.

  
	
   

  
	
  Waiver of Jury Trial

  
	
   

  
	
  Section 12.1

  	
  Waiver of Jury
  Trial

  	
  129

  



 


iv

















 


EXHIBITS


 


	
  Exhibit A

  	
   

  	
  -

  	
   

  	
  Form of EnergySolutions/Parent/Subsidiary Pledge Agreements

  
	
  Exhibit B

  	
   

  	
  -

  	
   

  	
  Form of Assumption Agreement

  
	
  Exhibit C

  	
   

  	
  -

  	
   

  	
  Form of Performance Certificate

  
	
  Exhibit D

  	
   

  	
  -

  	
   

  	
  Form of Request for Loan

  
	
  Exhibit E-1

  	
   

  	
  -

  	
   

  	
  Form of Revolving Note

  
	
  Exhibit E-2

  	
   

  	
  -

  	
   

  	
  Form of Zion L/C Loan Note

  
	
  Exhibit F

  	
   

  	
  -

  	
   

  	
  [Reserved]

  
	
  Exhibit G-1

  	
   

  	
  -

  	
   

  	
  Form of Request for Term Loan Eurodollar Basis

  
	
  Exhibit G-2

  	
   

  	
  -

  	
   

  	
  Form of Request for Eurodollar Zion L/C Loan

  
	
  Exhibit H

  	
   

  	
  -

  	
   

  	
  Form of Guaranty

  
	
  Exhibit I

  	
   

  	
  -

  	
   

  	
  Form of EnergySolutions Security Agreement

  
	
  Exhibit J

  	
   

  	
  -

  	
   

  	
  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 Acceptance

  
	
  Exhibit Q

  	
   

  	
  -

  	
   

  	
  Form of Subordination Agreement

  
	
  Exhibit R

  	
   

  	
  -

  	
   

  	
  Form of Perfection Certificate

  
	
  Exhibit S

  	
   

  	
  -

  	
   

  	
  Loan Party Acknowledgment

  



 


v

















 


	
  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

  	
   

  	
  -

  	
   

  	
  Term L/C Facility Loan Percentages of the Term L/C Facility Lenders
  and such Lenders’ Addresses for Notice

  
	
  Schedule 4-D

  	
   

  	
  -

  	
   

  	
  Zion Commitments

  
	
  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

  
	
  Schedule 18

  	
   

  	
  -

  	
   

  	
  Restructuring Costs

  



 


vi














 


THIRD AMENDED
AND RESTATED CREDIT AGREEMENT


 


This THIRD
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July [  ],
2008, 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”), 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 Term L/C
Facility issuing bank (the “Initial Term L/C Facility Issuing Bank”),
and Credit Suisse (“Credit Suisse”) and JPMorgan Chase Bank, N.A. (“JPMCB”)
as Arrangers for the Zion L/C Facility (“Zion Arrangers”).


 


WITNESSETH:


 


WHEREAS,
EnergySolutions, ENV Holdings LLC (“Holdco”), certain lenders party
thereto (the “Original Lenders”) 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 (the “Second Amended and Restated Credit Agreement”) as
of April 13, 2005;


 


WHEREAS, Duratek, Inc.,
a Delaware corporation (“Duratek”), certain lenders thereto (the “Duratek
Lenders”), 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 and
the related transactions, as described in the Zion Agreements (as defined
herein) (the “Zion Acquisition”), located in Zion, Illinois, (b) provide
for a new, one year, unfunded letter of credit facility (the “Zion L/C
Facility”) in aggregate principal amount of $200,000,000 for related
purposes and (c) to return the existing synthetic letter of credit
facility deposits and to make Term L/C Facility (the “Term L/C Facility”)
loans in aggregate principal amount of $100,000,000 (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 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 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
Permitted Debt” shall mean Indebtedness of EnergySolutions and Duratek that
(i) is unsecured, (ii) 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 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.


 


2

















 


“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”
shall mean this Third Amended and Restated Credit Agreement, dated as of July [  ],
2008, as it may be amended, restated, amended and restated, supplemented or
otherwise modified from time to time.


 


“Agreement
Currency” shall have the meaning set forth in Section 11.24.


 


“Agreement
Date” shall mean January 31, 2005.


 


“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.


 


“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 in
accordance with Section 2.3(f) and the
Term L/C Facility Unreimbursed Amount as determined in accordance with Section 2.2(f)(iii).


 


“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.


 


3

















 


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


 


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


 


“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.


 


“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 1⁄2 of 1%
above the Federal Funds Rate.


 


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


 


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


 


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


 


4

















 


“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.


 


“Base Rate
Zion L/C Loan” shall mean any portion of the Zion L/C Loans as to which
EnergySolutions has elected the Base Rate Basis for the interest rate thereon,
in accordance with the provisions of Section 2A.1(a) hereof,
and which shall be in a principal amount of at least $500,000 and in an
integral multiple of $100,000.


 


“Benchmark
LIBO Rate” shall have the meaning set forth in Section 2.2(f)(vii)(E).


 


“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.


 


“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” means a blocked deposit account at CNAI (or another commercial
bank which has executed a control agreement in accordance with the provisions
of the Collateral 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).


 


5

















 


“Cash Interest
Expense” shall mean, for any period, for Parent and its respective
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 recitals 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 or (y) the percentage of the then
outstanding voting stock owned beneficially by the Equity Sponsors directly or
indirectly of, in each case, Parent, or (ii) any Person other than Parent
or any Subsidiary that is a Loan Party has an economic or voting interest in
EnergySolutions or Duratek; or


 


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


 


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


 


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


 


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


 


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


 


“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 Zion Commitment,
the Revolving Letter of Credit Commitment, the Zion L/C Commitment, the Reclamation
L/C Facility Commitment and the Term L/C Facility Letter of Credit Commitment.


 


“Commitment
Letter” shall mean that Commitment Letter dated as of July 2, 2008 by
and between EnergySolutions and Credit Suisse, Credit Suisse Securities (USA)
LLC, JPMCB and J.P. Morgan Securities Inc., including the annexes thereto.


 


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


 


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


 


6

















 


“Confidential
Information Memorandum” shall mean the Confidential Information Memorandum
dated July [  ], 2008 used by Credit Suisse Securities (USA) LLC
and J.P. Morgan Securities Inc., based upon information supplied by Parent and
EnergySolutions, in connection with the syndication of the Zion L/C Facility.


 


“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 directors’ 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.


 


“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.


 


“Deed of
Trust” shall mean that certain Utah Deed of Trust and Fixture Filing, dated
as of the Agreement Date, executed by EnergySolutions in favor of the
Administrative Agent, as amended through the date hereof.


 


“Deed of
Trust Amendment” shall mean the Fifth Amendment to Utah Deed of Trust and
Fixture Filing, dated no later than 30 days after the Third Amended and
Restated Credit Agreement Effective Date (or such later date as the Collateral
Agent may agree to in its sole discretion), from EnergySolutions, as trustor,
to the Collateral Agent, as beneficiary, in respect of the Deed of Trust, in
form and substance reasonably satisfactory to the Collateral Agent and as the
same may be further amended from time to time.


 


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


 


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


 


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


 


7

















 


“Depositary
Bank” shall have the meaning set forth in Section 2.2(f)(vii).


 


“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.


 


“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, Inc.,
a Delaware corporation 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
Amendment” shall mean the certain amendment to the Duratek Loan Agreement
dated as of June 26, 2007.


 


“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 preamble 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.


 


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


 


8

















 


“EnergySolutions
Security Agreement” shall mean that certain Security Agreement, dated as of
the Agreement Date, 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 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” means 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.


 


9

















 


“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”
or means the single currency of the Participating Member States.


 


“Eurocurrency
Liabilities” has 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, a
Eurodollar Revolving Loan and a Eurodollar Zion L/C 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 U.S. dollars at 11:00 A.M.
(London time) or as soon thereafter as possible, two Business Days before the
first day of such Interest Period for a period equal to such Interest Period (provided
that, if for any reason such rate is not available, the term “Eurodollar Rate”
shall mean, for any Interest Period for any Eurodollar 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 


 


10

















 


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.


 


“Eurodollar
Zion L/C Loan” shall mean any portion of the Zion L/C Loans as to which
EnergySolutions has elected the Eurodollar Basis for the interest rate thereon,
in accordance with the provisions of Section 2A.1(a) hereof,
and which shall be in a principal amount of at least $500,000 and in an
integral multiple of $100,000.


 


“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 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 


 


11

















 


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 otherwise permitted
herein not to exceed $10,000,000 per such Special Purpose Subsidiary or (vii) sales,
transfers, contributions or dispositions of the 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.


 


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


 


“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 


 


12

















 


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
Letters” shall mean, collectively, (i) that certain agreement dated as
of July 1, 2008 setting forth the applicable fees to be paid by
EnergySolutions to the Administrative Agent and (ii) that certain
agreement dated as of July 2, 2008 setting forth the fees to be paid by
EnergySolutions to the Zion Arrangers, in both cases in connection with certain
of the Loans and the Commitments created hereunder.


 


“Financial
Condition Covenants” 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.


 


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


 


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


 


“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.


 


13

















 


“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.


 


“Honor Date”
means the date of any payment by any Term L/C Facility Issuing Bank under a
Letter of Credit.


 


“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).


 


“Indebtedness”
of any Person shall mean without duplication, (a) all obligations of such
Person for borrowed money, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, (c) all obligations of
such Person under conditional sale or other title retention agreements relating
to property acquired by such Person, (d) all obligations of such Person in
respect of the deferred purchase price of property or services (excluding
current accounts payable incurred in the ordinary course of business), (e) all
indebtedness (excluding prepaid interest thereon) of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on property owned or acquired by such Person,
whether or not the indebtedness secured thereby has been assumed; provided
that the amount of Indebtedness under this clause (e) shall be deemed to
be equal to the lesser of (i) the aggregate unpaid amount of such
Indebtedness and (ii) the fair market value of the property encumbered
thereby, (f) all Guarantees by such Person of Indebtedness, (g) all
Capital 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, Guaranties of any of the foregoing; provided 


 


14

















 


Term L/C
Facility Letters of Credit shall be included only to the extent of any Term L/C
Facility Unreimbursed Amount.  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
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
Term L/C Facility Issuing Bank” shall have the meaning set forth in the preamble
to this Agreement.


 


“Initial
Zion L/C Issuing Banks” shall mean Credit Suisse, Cayman Islands Branch and
JPMorgan Chase Bank, N.A.


 


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


 


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


 


“Interest
Period” shall mean (a) in connection with any Base Rate 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 Term L/C Facility Loan, the period
beginning on (and including) the date on which such Term L/C Facility Loan is
made 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.


 


15

















 


“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, Zion L/C Issuing Bank and the
Term L/C Facility Issuing Bank.


 


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


 


“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 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).


 


“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, and any other Person that has become a party to the Original
Credit Agreement in accordance with Section 11.5
thereof or which 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” means, as the context may require, a Revolving Letter of Credit, a
Term L/C Facility Letter of Credit, a Reclamation Letter of Credit and/or a
Zion Letter of Credit.


 


“Letter of
Credit Agreement” means, as the context may require, a Revolving Letter of
Credit Agreement, a Term L/C Facility Letter of Credit Agreement, a Reclamation
Letter of Credit Agreement and/or a Zion Letter of Credit Agreement.


 


“Letter of
Credit Loan” shall mean (i) a funding made by the Revolving Issuing
Bank or any Revolving Lender pursuant to Section 2.2(f)(ii),
(ii) a funding made by a Zion L/C Issuing Bank or any Zion Lender pursuant
to Section 2A.1(a), (iii) a Term
L/C Facility Loan made by a Term L/C Facility Lender pursuant to Section 2.1(c) and (iv) a funding made by a
Term L/C Facility Issuing Bank pursuant to Section 2.2(f)(iii).


 


16

















 


“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.


 


“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 and
the Term Loans.


 


“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.


 


17

















 


“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.


 


“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 the Third Amended and Restated Credit Agreement Effective Date:  (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.


 


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


 


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


 


“Mortgage”
shall have the meaning set forth in Section 5.10.


 


“Mortgage
Policy” shall have the meaning set forth in Section 5.18(b).


 


18

















 


“Mortgaged
Property” shall mean (a) as of the Third Amended and Restated Credit
Agreement Effective Date, the real property listed on Schedule 11 hereto
and designated as “Mortgaged Property” and (b) each real property, if any,
which shall be subject to a Mortgage delivered after the Third Amended and
Restated Credit Agreement Effective Date pursuant to Section 5.10.


 


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


 


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


 


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


 


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


 


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


 


19

















 


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


 


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


 


“Notes”
shall mean, collectively, the Revolving Notes, the Zion L/C 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 otherwise under the Loan Documents that
would accrue but for the filing of a bankruptcy action with respect to any Loan
Party, whether or not such claim is allowed in such bankruptcy action), as they
may be amended from time to time, or as a result of making the Loans, whether
such obligations are direct or indirect, absolute or contingent, due or not
due, contractual or tortious, liquidated or unliquidated, arising by operation
of law or otherwise, now existing or hereafter arising, and (b) the obligation
of any Loan Party to pay an amount equal to the amount of any and all damages
which the 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, to the extent deducted or accrued in determining Net Income,
the sum of each of the following for such period: (a) depreciation,
amortization and other non-cash charges (including, without limitation,
accretion charges and compensation expenses for equity grants issued) (but
excluding non-cash charges that constitute an accrual of a reserve for future
cash payments), (b) Cash Interest Expense, (c) Permitted Advisory
Fees, (d) income tax expense, (e) fees and expenses incurred by
Parent and its Subsidiaries in connection with the Amendment Transactions and
the Duratek Acquisition; provided that no costs and expenses incurred by
Parent or its Subsidiaries to Guaranty the payment or performance of a Special
Purpose Subsidiary or the Zion Acquisition or EnergySolutions’ decommissioning
obligations related thereto shall be included in this clause (e),
(f) costs and expenses relating to unrealized synergies expected to be
achieved by Parent and its Subsidiaries, incurred in connection or as a result
of the Duratek Acquisition, not to exceed the Restructuring Cost Cap in any
four-quarter fiscal period, (g) cash charges incurred to effectuate the
savings identified in clause (f) not
to exceed $15,000,000 in the aggregate from the Original Agreement Date 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 Subsidiary makes any
Acquisition during a period in which Operating 


 


20

















 


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.


 


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


 


“Original
Term Loans” shall have the meaning set forth in the recitals to this
Agreement.


 


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


 


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


 


“Participating
Member State” means 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” means (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.


 


“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 


 


21

















 


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 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;


 


22

















 


(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;


 


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


 


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


 


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


 


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


 


(p)                                 Liens
on the Collateral securing obligations under the 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)                                 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, ZionSolutions;


 


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


 


(s)                                  easements
granted (i) pursuant to the Zion Agreements and (ii) 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 in an amount not to exceed 10% of the availability at
such Clive, Utah disposal site for the disposal of Class A low level
radioactive waste.


 


23














 


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


 


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


 


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


 


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


 


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


 


“Permitted
Restricted Payments” shall include (i) Permitted Advisory Fees, (ii) Tax
Distributions, (iii) Restricted Payments that do not exceed $15,000,000,
in the aggregate, from the 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, an unincorporated organization, a
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” means 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).


 


24

















 


“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, 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 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, if no Zion Letter of Credit has
been drawn and remains outstanding, (i) the lesser of the Incremental
Commitment Cap and  $10,000,000, if such
Reclamation L/C Facility Commitments are issued before the Zion L/C Maturity
Date and (ii) the lesser of the Incremental Commitment Cap and $50,000,000
if such Reclamation L/C Facility Commitments are issued on or after the Zion
L/C Maturity Date; provided that, if any Zion Letter of Credit has been
drawn pursuant to Section 2A.1(a)(iii) hereto,
the Reclamation L/C Facility Commitment Cap shall be zero.


 


“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).


 


25

















 


“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 Zion L/C Loan Eurodollar Basis” shall mean a certificate designated as
a “Request for Zion L/C Loan Eurodollar Basis” signed by an Authorized
Signatory requesting that a portion of the Zion L/C Loan complying with the
requirements of this Agreement applicable to Eurodollar Zion L/C Loans bear
interest at the Eurodollar Basis, which shall be in substantially the form of Exhibit G-2
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.


 


“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.


 


“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-1
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.


 


26

















 


“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 Acceptances, 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 1-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,
but shall include those letters of credit existing on the Third Amended and
Restated Credit Agreement Effective Date set forth on Schedule 1-B
hereto.


 


“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 Commitment, 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
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-1 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).


 


27

















 


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


 


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


 


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


 


“Secured
Obligations” shall mean (a) the Obligations and (b) the due and
punctual payment and performance of all obligations of EnergySolutions and the
other Loan Parties under each 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 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
Subsidiary Security Agreements, the Parent Security Agreement and any
additional security agreement substantially in the form of Exhibit J
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 Deed of Trust, 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 and reflected in the Projections 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 


 


28

















 


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 has been designated with
reasonable prior notice by EnergySolutions to the Administrative Agent, as a
Special Purpose Subsidiary and in each case formed for the purpose of entering
into one or more contracts (such contracts and all related documentation, 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


 


29

















 


executed by a
new Subsidiary in accordance with Section 5.13,
substantially in the form of Exhibit J attached hereto.


 


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


 


“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.


 


“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
Deposits” shall mean those Synthetic Deposits established pursuant to the
Second Amended and Restated Credit Agreement to the credit of each Synthetic
Lender’s Deposit Sub-Account.  As of
12:00 a.m. (New York time) on the Third Amended and Restated Credit
Agreement Effective Date, all Synthetic Deposits in existence under the Second
Amended and Restated Credit Agreement shall be converted into Term L/C Facility
Loans pursuant to this Agreement.


 


“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” pur-suant to the Second Amended and Restated
Credit Agreement.  As of the Third
Amended and Restated Credit Agreement Effective Date, no Synthetic Deposit
Account shall exist pursuant to this Agreement.


 


“Synthetic
Deposit Sub-Account” shall mean each Synthetic Lender’s interest, prior to
the Third Amended and Restated Credit Agreement Effective Date, in the
Synthetic Deposit Account established by the Administrative Agent pursuant to
the Second Amended and Restated Credit Agreement.  As of 12:00 a.m. (New York time) on the
Third Amended and Restated Credit Agreement Effective Date, all Synthetic
Deposit Sub-Accounts established pursuant to the Second Amended and Restated
Credit Agreement shall be converted into Term L/C Facility Collateral
Sub-Accounts pursuant to this Agreement.


 


“Synthetic Issuing Bank”
shall mean the initial Synthetic
Issuing Bank and its permitted assignees established pursuant to the
Second Amended and Restated Credit Agreement.  As of the Third Amended
and Restated Credit Agreement Effective Date, no Synthetic Issuing Bank shall
exist pursuant to this Agreement.


 


“Synthetic
Lenders” shall mean those Lenders with Synthetic Deposits pursuant to the
Second Amended and Restated Credit Agreement. 
As of 12:00 a.m. (New York time) on the Third Amended and Restated
Credit Agreement Effective Date, all Synthetic Lenders under the Second Amended
and Restated Credit Agreement shall be deemed Term L/C Facility Lenders pursuant
to this Agreement.


 


“Synthetic Letter of
Credit Agreements” shall mean those agreements entered into between
the Synthetic Issuing Bank and Synthetic Lenders pursuant to the Second Amended
and Restated Credit Agreement.  As of the Third Amended and Restated
Credit Agreement Effective Date, no Synthetic Letter of Credit Agreements shall
exist pursuant to this Agreement.


 


30

















 


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


 


“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 Acceptances, 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 L/C
Facility” shall have the meaning set forth in the recitals to this
Agreement.


 


“Term L/C
Facility Availability Date” shall mean any Business Day on or after the
establishment of the Term L/C Facility Collateral Account pursuant to Section 2.2(f)(vii).


 


“Term L/C
Facility Available Amount” shall mean the aggregate amount of all Term L/C
Facility Comittments less (i) the aggregate amount of all Term L/C
Facility Loans repaid to Lenders pursuant to Section 2.7
and  less (ii) the Dollar
Equivalent of the amount of the Term L/C Facility Unreimbursed Amount as
determined in accordance with Section 2.2(f)(iii) and
plus (iii) any amount deposited by 


 


31

















 


EnergySolutions
into the Term L/C Facility Collateral Account pursuant to Section 2.3(f)(iii);
provided that the Term L/C Facility Available Amount shall at no time
exceed $100,000,000.


 


“Term L/C
Facility Collateral Account” means one or more Cash Collateral Accounts or
securities accounts established pursuant to, and subject to the terms of, Section 2.2(f)(vii).


 


“Term L/C
Facility Collateral Account Balance” means, at any time, the aggregate
amount on deposit in the Term L/C Facility Collateral Account.


 


 “Term L/C Facility Collateral Return”
shall have the meaning set forth in Section 2.2(f)(vii).


 


“Term L/C
Facility Collateral Sub-Account” shall have the meaning set forth in Section 2.2(f)(vii)(B).


 


“Term L/C
Facility Commitment” means, as to each Term L/C Facility Lender, (a) in
the case of each Term L/C Facility Lender that is a Term L/C Facility Lender on
the date hereof, the amount set forth opposite such Term L/C Facility Lender’s
name on Schedule 4-C as such Term L/C Facility Lender’s “Term L/C
Facility Commitment” and (b) in the case of any Term L/C Facility Lender
that becomes a Term L/C Facility Lender after the date hereof, the amount
specified as such Term L/C Facility Lender’s “Term L/C Facility Commitment” in
the Assignment and Acceptance pursuant to which such Term L/C Facility Lender
assumed its Term L/C Facility Commitment, in each case as the same may be
changed from time to time pursuant to the terms hereof.  The aggregate amount of the Term L/C Facility
Commitments as of the date hereof is $100,000,000.


 


 “Term L/C Facility Issuing Bank” shall
mean the Initial Term L/C Facility Issuing Bank 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 Term L/C Facility
Loan 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 Term L/C Facility Issuing Bank and
notifies the Administrative Agent of the amount of its Term L/C Facility Loan
(which information shall be recorded by the Administrative Agent in the
Register), for so long as the Initial Term L/C Facility Issuing Bank or
assignee, as the case may be, shall have a Term L/C Facility Loan.


 


“Term L/C
Facility Lender” shall mean, as of any time of determination, any Lender
which has a Term L/C Facility Loan Percentage greater than 0%.


 


“Term L/C
Facility Letter of Credit” shall have the meaning set forth in Section 2.1(e).


 


“Term L/C
Facility Letter of Credit Agreement” shall have the meaning set forth in Section 2.2(f)(i).


 


“Term L/C
Facility Letter of Credit Commitment” shall mean the Term L/C Facility Issuing
Bank’s obligation to issue Term L/C Facility Letters of Credit pursuant to Section 2.1(e).


 


“Term L/C
Facility Letter of Credit Maturity Date” shall mean June 7, 2013.


 


32

















 


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


 


“Term L/C
Facility Loan” shall mean, a Loan made by a Term L/C Facility Lender to
EnergySolutions pursuant to Section 2.1(c).


 


“Term L/C
Facility Loan Percentage” shall mean, with respect to any Term L/C Facility
Lender, the percentage of the total Term L/C Facility Loans represented by such
Lender’s Term L/C Facility Loan.  If the
Term L/C Facility Loans have been reduced to zero, the Term L/C Facility Loan
Percentages shall be determined based upon the Term L/C Facility Loans most
recently in effect, giving effect to any assignments.  Each Term L/C Facility Lender’s Term L/C
Facility Loan Percentage on the Third Amended and Restated Credit Agreement
Effective Date is set forth opposite its name on Schedule 4-C hereto
under the caption “Term L/C Facility Loan 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).


 


“Term L/C
Facility Notice of Renewal” shall have the meaning set forth in Section 2.1(e).


 


“Term L/C
Facility Notice of Termination” shall have the meaning set forth in Section 2.1(e).


 


“Term L/C
Facility Obligations” means, as at any date of determination, the aggregate
undrawn amount of all outstanding Term L/C Facility Letters of Credit plus the
aggregate of all Term L/C Facility Unreimbursed Amounts.


 


“Term L/C
Facility Reimbursement Obligation” shall have the meaning set forth in Section 2.4(d)(ii).


 


“Term L/C
Facility Unreimbursed Amount” shall have the meaning set forth in Section 2.2(f)(iii).


 


“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 to EnergySolutions
in an aggregate amount of $530,000,000, as set forth on Schedule 4-B
attached hereto.


 


“Term Notes”
shall mean those certain term promissory notes in the aggregate original
principal amount of $530,000,000, 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 Credit Agreement Effective Date” means [                    ], 2008.


 


33

















 


“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 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: (a) the
ZionSolutions Limited Liability Company Agreement entered into by members of
ZionSolutions, (b) the Asset Sale Agreement, dated December 11, 2007,
by and among Exelon, ZionSolutions, EnergySolutions and Parent, (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) a Credit Support Agreement to
be entered into by and among Exelon, EnergySolutions and Parent, (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) Performance Guaranty made as of December 11, 2007
by EnergySolutions in favor of Exelon and (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.


 


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


 


34

















 


“Zion
Commitment” shall mean, with respect to any Zion Lender at any time, the
amount set forth opposite such Lender’s name on Schedule 4-D hereto
under the caption “Zion Commitment” 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) as
such Lender’s “Zion Commitment.”


 


“Zion L/C
Commitment” shall mean, with respect to the Zion L/C Issuing Banks, an
aggregate amount equal to $200,000,000.


 


“Zion L/C
Facility” shall have the meaning set forth in the preamble to this Agreement..


 


“Zion L/C
Facility Availability Date” shall mean any Business Day on or after the
establishment of the Zion L/C Facility. 
On such date, the Available Amount for all Zion Letters of Credit shall
not exceed $200,000,000.


 


“Zion L/C
Issuing Banks” shall mean the Initial Zion L/C Issuing Banks and any
assignee to which a Zion L/C 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 a Zion L/C Issuing Bank and notifies the Administrative Agent of the
amount of its Zion L/C Commitment (which information shall be recorded by the
Administrative Agent in the Register), for so long as any Zion L/C Issuing Bank
or assignee, as the case may be, shall have a Zion L/C Commitment.


 


“Zion L/C
Loan” shall mean the Base Rate Zion L/C Loans and the Eurodollar Zion L/C
Loans as described in Section 2.2(a).


 


“Zion L/C
Maturity Date” shall mean the earlier of (i) one year from the date of
issuance of the Zion Letters of Credit and (ii) October 31, 2009.


 


“Zion L/C
Notes” shall mean those certain promissory notes, one issued by
EnergySolutions to each of the Zion Lenders issuing a Zion Commitment that
requests a promissory note, in accordance with each such Zion Lender’s Zion
Commitment, each one substantially in the form of Exhibit E-2
attached hereto, and any extensions, modifications, renewals, endorsements or replacements
of or amendments to any of the foregoing.


 


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


 


“Zion
Letter of Credit” shall have the meaning set forth in Section 2.1(f).


 


“ZionSolutions”
shall mean ZionSolutions, LLC, a Delaware limited liability company, organized
for the purpose of consummating the Zion Acquisition.


 


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.


 


35

















 


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 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)           The Term L/C Facility
Loans.  Subject to the terms and
conditions set forth herein, the Synthetic Lenders and EnergySolutions agree
that, as of 12:00 a.m. (New York time) on the Third Amended and Restated
Credit Agreement Effective Date, (i) each Synthetic Lender under the
Second 


 


36

















 


Amended and
Restated Credit Agreement shall become a Term L/C Facility Lender under the
Third Amended and Restated Credit Agreement by the transfer to EnergySolutions
of its share of the Synthetic Deposit Account and the Synthetic Deposit
Sub-Account (each of which transfers shall be treated as a Term L/C Facility
Loan in the amount thereof) and (ii) to give effect to such transfers, the
Administrative Agent shall transfer the aggregate amount of the Synthetic
Deposit Account and of the Synthetic Deposit Sub-Account as of 11:59 p.m.
(New York time) on the day immediately prior to the Third Amended and Restated
Credit Agreement Effective Date into the Term L/C Facility Collateral
Account.  Amounts borrowed pursuant to
this Section 2.1(c) and repaid pursuant to Section 2.7 hereto
may not be re-borrowed..


 


(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).


 


(e)           Term L/C Facility
Letters of Credit.  The Term L/C
Facility Issuing Bank agrees, on the terms and conditions hereinafter set
forth, to issue (or cause any Affiliate that is a commercial bank to issue on
its behalf) standby letters of credit (each a “Term L/C Facility Letter of
Credit”) in Dollars or any Available Foreign Currency for the account of
EnergySolutions or any of its Subsidiaries from time to time on any Business
Day during the period from the Term L/C Facility Availability Date until five
days 


 


37

















 


before the
Term L/C Facility Letter of Credit Maturity Date; provided that the Term
L/C Facility Issuing Bank shall not be permitted or required to issue any Term
L/C Facility Letter of Credit or increase the Available Amount of any existing
Term L/C Facility Letter of Credit if, after giving effect thereto, (i) the
aggregate amount of all Term L/C Facility Letter of Credit Outstandings would
exceed the Term L/C Facility Available Amount or (ii) the aggregate amount
of all Term L/C Facility Letter of Credit Outstandings would exceed the amount
on deposit in the Term L/C Facility Collateral Account.  No Term L/C Facility 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 Term L/C Facility
Letter of Credit Maturity Date, but may by its terms be renewable annually upon
written notice (a “Term L/C Facility Notice of Renewal”) given to the
Term L/C Facility Issuing Bank that issued such Term L/C Facility Letter of
Credit and the Administrative Agent on or prior to any date for notice of
renewal set forth in such Term L/C Facility Letter of Credit but in any event
at least 10 Business Days prior to the date of the proposed renewal of such
Term L/C Facility Letter of Credit and upon fulfillment of the applicable
conditions set forth in Article 3
unless the Term L/C Facility 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 Term L/C Facility Letter of Credit but in any
event at least five Business Days prior to the date of automatic renewal of its
election not to renew such Term L/C Facility Letter of Credit (a “Term L/C
Facility Notice of Termination”); provided that the terms of each
Term L/C Facility Letter of Credit that is automatically renewable annually
shall (x) require the Term L/C Facility Issuing Bank that issued such Term
L/C Facility Letter of Credit to give the beneficiary named in such Term L/C
Facility Letter of Credit notice of any Term L/C Facility Notice of
Termination, (y) permit such beneficiary, upon receipt of such notice, to
draw under such Term L/C Facility Letter of Credit prior to the date such Term
L/C Facility Letter of Credit otherwise would have been automatically renewed
and (z) not permit the expiration date (after giving effect to any renewal)
of such Term L/C Facility Letter of Credit in any event to be extended to a
date later than five days before the Term Loan Maturity Date.  If either a Term L/C Facility Notice of
Renewal is not given by EnergySolutions or a Term L/C Facility Notice of Termination
is given by the Term L/C Facility Issuing Bank pursuant to the immediately
preceding sentence, such Term L/C Facility Letter of Credit shall expire on the
date on which it otherwise would have been automatically renewed.  Within the limits of the Term L/C Facility
Available Amount, and subject to the limits referred to above, EnergySolutions
may request the issuance of Term L/C Facility Letters of Credit under this Section 2.1(e) and request the issuance of additional
Term L/C Facility Letters of Credit under this Section 2.1(e).


 


(f)            Zion Letters of
Credit.  Each Zion L/C Issuing Bank
agrees, on the terms and conditions hereinafter set forth, to issue (or cause
any Affiliate that is a commercial bank to issue on its behalf) an irrevocable
standby letter of credit (each a “Zion Letter of Credit”) in Dollars for
the account of EnergySolutions or any of its Subsidiaries on any date from the
Third Amended and Restated Credit Agreement Effective Date and until the Zion
L/C Maturity Date in an aggregate Available Amount for all Zion Letters of
Credit not to exceed at any time the Zion L/C Commitment at such time.  No Zion Letter of Credit shall have an
expiration date later than the Zion L/C Maturity Date.  Within the limits of the Zion L/C Commitment,
and subject to the limits referred to above, EnergySolutions may request the
issuance of Zion Letters of Credit under this Section 2.1(f).


 


Section 2.2                                      Manner
of Borrowing and Disbursement.


 


(a)           Choice of Interest
Rate, Etc.  1.  Any Loan under the Revolving Commitment, the
Zion L/C 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, Eurodollar Zion L/C 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 


 


38

















 


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.


 


(i)      (A)  On the date on
which the aggregate unpaid principal amount of any Eurodollar Revolving Loan,
Eurodollar Zion L/C 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 or Eurodollar Zion L/C 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, (2) continued
as a Base Rate Zion L/C Loan, in the case of a Eurodollar Zion L/C Loan, or (c) 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, Eurodollar Zion L/C 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, (2) continued
as a Base Rate Zion L/C Loan, in the case of a Eurodollar Zion L/C Loan or (3) 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 (ii) continued as a Base Rate Zion L/C Loan,
in the case of a Eurodollar Zion L/C Loan, or (iii) 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 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 


 


39

















 


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.


 


(iv)    Continuations of Zion L/C
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, Request for Zion L/C Loan
Eurodollar Basis, EnergySolutions shall specify whether all or a portion of
each Base Rate Zion L/C Loan outstanding on the related Payment Date (A) is
to be continued in whole or in part as one or more Eurodollar Zion L/C Loans
for the Interest Period(s) selected, (B) is to be continued in whole
or in part as one or more Base Rate Zion L/C 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, Request
for Zion L/C Loan Eurodollar Basis or Request for Term Loan Eurodollar Basis,
or telephonic notice followed immediately by a Request for Loan, Request for
Zion L/C Loan Eurodollar Basis or Request for Term Loan Eurodollar Basis; provided,
however, that EnergySolutions’ failure to confirm any telephonic notice
with a Request for Loan, Request for Zion L/C Loan Eurodollar Basis 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.


 


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


 


40

















 


(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 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) or
2A.1(a)(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 


 


41

















 


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.


 


This Section 2.2(f) shall not be applicable to the Zion
Letters of Credit, which are governed by Article 2A.


 


(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 Term L/C Facility Lender (in the case of a request
for a Term L/C Facility 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 “Term L/C Facility 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
2.1(f) hereof have been satisfied
as to such Letter of 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 Letter of Credits.  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, 


 


42

















 


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(c) (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)    Participations in Term L/C
Facility Letters of Credit.  Upon
receipt from the beneficiary of any Term L/C Facility Letter of Credit of any
notice of a drawing under such Letter of Credit, the relevant Term L/C Issuing
Bank shall promptly notify EnergySolutions and the Administrative Agent thereof
(which may be telephonic, promptly confirmed by telecopy).  EnergySolutions shall be required to reimburse
such Term L/C Facility Issuing Bank through the Administrative Agent in an
amount equal to the Dollar Equivalent of such drawing not later than 1:00 p.m.
(eastern time) on the Honor Date, if EnergySolutions shall have received such
notice prior to 11:00 a.m. (eastern time) on such date, or, if such notice
has not been received by EnergySolutions prior to such time on such date, then
not later than 1:00 p.m. (eastern time) on the next Business Day; provided
that unless EnergySolutions shall reimburse such Term L/C Issuing Bank by 1:00 p.m.
(eastern time) on the same day on which such drawing is made, the unpaid amount
(such amounts, including accrued interest, the “Term L/C Facility
Unreimbursed Amount”) thereof shall bear interest at a rate per annum equal
to the Base Rate plus the Applicable Margin, for each day commencing on the
date the drawing is made until the date that EnergySolutions pays the Administrative
Agent for the account of such Term L/C Facility Issuing Bank the Dollar
Equivalent of the amount of such drawing. 
If EnergySolutions does not so reimburse the relevant Term L/C Issuing
Bank at or prior to the time for payment specified above in respect of such
drawing under such Term L/C Facility Letter of Credit, the Administrative Agent
may promptly cause the amounts on deposit in the Term L/C Facility Collateral
Account to be applied to repay in full or in part such amounts and the Term L/C
Facility shall be automatically but not permanently reduced by the Term L/C
Facility Unreimbursed Amount in accordance with Section 2.2(f)(vii).  EnergySolutions may from time to time cause
additional funds to be deposited and held in the Term L/C Facility Collateral
Account to replace any funds applied by the Administrative Agent pursuant to
the preceding sentence to repay a Term L/C Facility Unreimbursed Amount.  All funds deposited and held in the Term L/C
Facility Collateral Account pursuant to the 


 


43

















 


foregoing sentence shall increase the Term
L/C Facility Available Amount by an amount equal to the Dollar Equivalent of
the funds deposited.


 


(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.


 


(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 Term L/C Facility 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)   Term
L/C Facility Collateral Account.


 


(A)          On or prior to the Third
Amended and Restated Credit Agreement Effective Date, the Borrower shall
establish the Term L/C Facility Collateral Account for the purpose of cash
collateralizing EnergySolutions’ obligations to the Term L/C Issuing Bank in
respect of the Term L/C Facility Letters of Credit.  On the Third Amended and Restated Credit
Agreement Effective Date the proceeds of the Term L/C Facility Loans shall be
deposited in the Term L/C Facility Collateral Account pursuant to Section 2.1(c). 
EnergySolutions agrees that at all time thereafter, and shall
immediately cause additional funds to be deposited and held in the Term L/C
Facility Collateral Account from time to time in order that, the Term L/C
Facility Collateral Account Balance shall at least equal the Term L/C Facility
Available Amount plus the Dollar Equivalent of the aggregate amount of Term L/C
Facility Unreimbursed Amounts.  EnergySolutions
hereby grants to the Collateral Agent, for the benefit of the Term L/C Issuing
Bank, a security interest in the Term L/C Facility Collateral Account and all
cash and balances therein and all proceeds of the foregoing, as security for
the Term L/C Facility Obligations (and, in addition, grants a security interest
therein, for the benefit of the Secured Parties as collateral security for the
Secured Obligations, provided that amounts on deposit in the Term L/C
Facility Collateral Account shall be applied, first, to repay Term L/C Facility
Obligations and, then, all other Secured Obligations).  Except as expressly provided herein or in any
other Loan Document, no Person shall have the right to make any withdrawal from
the Term L/C Facility Collateral Account or to exercise any right or power with
respect thereto; provided that at any time EnergySolutions shall fail to
reimburse any Term L/C Facility Issuing Bank for any Term L/C Facility
Unreimbursed Amounts in accordance with the terms of Section 2.2(f)(iii),
EnergySolutions hereby absolutely, unconditionally and irrevocably agrees that
the Collateral Agent shall be entitled to instruct the depositary bank (the “Depositary
Bank”) of the Term L/C Facility 


 


44

















 


Collateral
Account to withdraw therefrom and pay to the Administrative Agent for account
of such Term L/C Facility Issuing Bank amounts equal to such Term L/C Facility
Unreimbursed Amounts.


 


(B)           The Administrative
Agent shall maintain records enabling it to determine at any time the amount of
each Lender’s Term L/C Facility Loan; the evidence of such Lender’s Term L/C
Facility Loan is herein referred to as such Lender’s “Term L/C Facility
Collateral Sub-Account”).  The
Administrative Agent shall establish such additional Term L/C Facility
Collateral Sub-Accounts for assignee Lenders as shall be required pursuant to Section 11.5.  No
person (other than the Administrative Agent or any of its sub agents) shall
have the right to make any withdrawals from the Term L/C Facility Collateral Account
or exercise any other right or power with respect thereto, except as expressly
provided herein.


 


(C)           Concurrently with the
effectiveness of any assignment by any Term L/C Facility Lender of all or any
portion of its Term L/C Facility Loan, the corresponding portion of the
assignor’s Term L/C Facility Collateral Sub-Account shall be transferred from
the assignor’s Term L/C Facility Collateral Sub-Account to the assignee’s Term
L/C Facility Collateral Sub-Account in accordance with Section 11.5
and, if required by Section 11.5,
the Administrative Agent shall close such assignor’s Term L/C Facility  Collateral Sub-Account.


 


(D)          Upon the reduction of
the Term L/C Facility Available Amount and the Term L/C Facility Letter of
Credit Outstandings to zero pursuant to Section 2.7,
all amounts remaining in the Term L/C Facility Collateral Account shall be used
to repay any outstanding principal, interest and any other Obligations arising
under the Term L/C Facility Loans.  To
the extent the outstanding principal, interest and any other Obligations
arising under the Term L/C Facility Loans have been satisfied, any amounts remaining
in the Term L/C Facility Collateral Account shall be returned to EnergySolutions.


 


(E)           The Administrative
Agent shall invest, or cause to be invested, the Term L/C Facility Collateral
Account Balance so as to earn for the account of EnergySolutions a return thereon
(the “Term L/C Facility Collateral Return”) for each day at a rate per
annum equal to (i) the one month LIBOR rate as determined by the
Administrative Agent on such day (or if such day was not a Business Day, the
first Business Day immediately preceding such day) based on rates for deposits
in dollars (as set forth by Bloomberg L.P.-page BTMM or any other
comparable publicly available service as may be selected by the Administrative
Agent) (the “Benchmark LIBO Rate”) minus (ii) 0.15% per annum
(based on a 365/366 day year).  The
Benchmark LIBO Rate will be reset monthly. 
The Term L/C Facility Collateral Return accrued through and including
the last day of each Interest Period shall be payable by the Administrative
Agent to EnergySolutions on each day on which interest is required to be paid
with respect to all or any portion of the Term L/C Facility Loans pursuant to Section 2.3(g). 
No Person other than the Administrative Agent shall have any obligation
under or in respect of this clause.


 


(F)           [Reserved].


 


(G)           If the Term L/C
Facility Issuing Bank is enjoined from taking any action referred to in clause (ii) of
Section 2.4(d), or if the Term L/C
Facility Issuing Bank reasonably determines that, by operation of law, it may
reasonably be precluded from taking any such action, or if any Loan Party or
Term L/C Facility Lender challenges in any legal proceeding any of the
acknowledgements, agreements or characterizations set forth in any of clause (a) of
this Section 2.2(f)(vii), then, in any
such case (and so long as such event or condition shall be continuing), and
notwithstanding anything contained herein to the


 


45














 


contrary, the Term L/C Facility Issuing Bank shall not be required to
issue, renew or extend any Term L/C Facility Letter of Credit.


 


(H)          [Reserved].


 


(I)            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,
the Zion L/C Facility Letter of Credit Maturity Date or the Term Loan Maturity
Date, as applicable, with respect to Revolving Loans, Zion L/C 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, the Zion L/C Maturity Date or the Term Loan Maturity
Date, as applicable, with respect to Revolving Loans, Zion L/C 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 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) 2.50% for Eurodollar Term Loans (or 2.00%
when the Leverage Ratio as of the most recently completed fiscal quarter is
less than 2.0 to 1.0) and (y) 1.25% for Base Rate Term Loans (or 1.00%
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 or Zion L/C
Loan, (x) 2.50% for Eurodollar 


 


46

















 


Option Loans
and (y) 1.25% for Base Rate Options Loans and (iii) with respect to
any Term L/C Facility Loan and the Term L/C Facility Unreimbursed Amount, 2.50%
(or 2.00% when the Leverage Ratio as of the most recently completed fiscal quarter
is less than 2.0 to 1.0)


 


(g)           Term
L/C Facility Loans. Upon the transfer of the aggregate amount of the
Synthetic Deposit Account into the Term L/C Facility Collateral Account on the
Third Amended and Restated Effective Date pursuant to Section 2.1(c) hereof,
the Term L/C Facility Loans shall accrue interest at a rate per annum equal to
the sum of the Eurodollar Rate for the relevant Interest Period plus the
Applicable Margin. All Term L/C Facility Loans shall accrue interest at all
times that they are on deposit in the Term L/C Facility Collateral Account. Interest
accrued on each Term L/C Facility Loan shall be payable, without
duplication:  (a) on the Term L/C
Facility Letter of Credit Maturity Date, (b) on the date of any repayment
of the Term L/C Facility Loans made pursuant to Section 2.7
and (c) on the last day of each Interest Period.


 


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. Any unpaid principal and interest of the Term L/C
Facility Loans and any other outstanding Obligations arising under the Term L/C
Facility Loans shall be due and payable in full on the Term L/C Facility Letter
of Credit Maturity Date.


 


(b)           EnergySolutions
shall repay to the Administrative Agent for the account of the Zion Issuing
Banks and each other Zion Lender that has made a Zion L/C Loan on the Zion L/C
Maturity Date any unpaid principal and interest of each Zion L/C Loan made by
each of them.


 


(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%. On June 7, 2013, the outstanding principal balance of
the Term Loans, if any, shall be repaid in full. 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. (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 a
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, the Obligation of EnergySolutions under this Agreement to reimburse,
without duplication, the Term L/C Facility Issuing Bank with respect to each
Term L/C Facility Unreimbursed Amount (including interest thereon) and the
right of the Term L/C Facility Issuing


 


47

















 


Bank to be paid with amounts on deposit in the Term L/C Facility
Collateral Account pursuant to Section 2.2(f)(vii) (a
“Term L/C Facility Reimbursement Obligation”), 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.


 


Section 2.5                                      Fees.


 


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


 


(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


 


48

















 


the Third
Amended and Restated Credit Agreement Effective 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 fees. 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.


 


(iii)    EnergySolutions shall pay to the Term L/C Facility
Issuing Bank, for its own account, a Term L/C Facility Letter of Credit
fronting fee in respect of each Term L/C Facility Letter of Credit, payable in
arrears quarterly on the last Business Day of each calendar quarter and on the
Term L/C Facility Letter of Credit Maturity Date, of such Term L/C Facility Letter
of Credit, computed at 0.25% per annum of the face amount of such Letter of
Credit, and shall also pay to the Term L/C Facility 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 Term L/C Facility 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.


 


(d)           [Reserved].


 


Section 2.6                                      Optional
Prepayments and Application of Prepayments.


 


(a)           Optional
Prepayment of Loans. Subject to Section 2.6(b),
the principal amount of any Base Rate 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.


 


49

















 


(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 Zion L/C Loans shall be applied (i) first, to prepayment of
the Zion L/C Loans then outstanding until such Loans are paid in full, and (ii) second,
to be deposited in the L/C Collateral Account to cash collateralize the
aggregate Available Amount of the Zion Letters of Credit then outstanding. 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, the Term L/C Facility or
the Zion L/C 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                                      Term
L/C Facility Loan Repayments.


 


From time to time on any Business Day, EnergySolutions may cause the
Term L/C Facility Loans to be repaid ratably to the Term L/C Facility Lenders; provided
that (A) all such voluntary repayments shall require at least one but no
more than five (5) Business Days’ prior telephonic notice (promptly confirmed
in writing or via e-mail communication)(1) to the
Administrative Agent; (B) all such voluntary partial repayments shall be
in an aggregate minimum amount of $1,000,000 and an integral multiple of
$500,000, and (C) such repayments 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


 






(1)           [Subject to confirm by
Citi operations.]


 


50

















 


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. Such amount shall be applied on the third Business
Day following receipt thereof by EnergySolutions, Parent or the affected
Subsidiary in accordance with Section 2.6(b).
For the purposes of 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; 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)           Any
prepayment pursuant to this Section 2.8
shall be made in the manner set forth in Section 2.6(b).


 


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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, Zion 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, the
Type of such Loan and, if appropriate, the Interest Period applicable thereto, (ii) the
terms of each Assignment and Acceptance 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 Term L/C Facility Loans.


 


(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 Acceptance 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 Acceptance, 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 Acceptance shall


 


52

















 


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 Letters, under any Notes or under the other Loan Documents without
set-off or counterclaim or any deduction whatsoever (other than any deductions
or withholdings required by law on account of Taxes).


 


(c)           Prior
to the acceleration of the Loans under Section 8.2
hereof, if some but less than all amounts due from 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.


 


53

















 


(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 the Term
L/C Facility Unreimbursed Amount in respect of Term L/C Facility 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.


 


(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


 


54

















 


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)           Each
Loan from the Lenders shall be made pro rata (i) on the basis of the
respective Revolving Commitments of the Revolving Lenders as set forth on Schedule
4-A with respect to Loans made under the Revolving Commitment, (ii) on
the basis of the respective Term Commitments of the Term Lenders as set forth
on Schedule 4-B hereof with respect to Term Loans, (iii) on the
basis of the respective Term L/C Facility Commitments of the Term L/C Facility
Lenders as set forth on Schedule 4-C hereof with respect to Term Loans
and (iv) on the basis of the respective Zion Commitments of the Zion
Lenders as set forth on Schedule 4-D hereof with respect to Zion L/C
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 Term L/C Facility Collateral 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 made by it in excess of its ratable share of such Loans, such Lender
shall forthwith purchase from the other Lenders such interests (whether by
purchasing a participation or by assignment) in the applicable Loans made by
them as shall be necessary to cause such purchasing Lender to share the excess
payment ratably with each of them; provided, however, that if all
or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and each
such Lender shall repay to the purchasing Lender the purchase price to the
extent of such recovery; provided  further, however, that,
so long as the Obligations under the Loan Documents shall not have been
accelerated, any excess payment received by any Lender in respect of any Type
of Loans shall be shared on a pro rata basis only with other Lenders to which
Loans of such Type are owing. 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 of any Applicable Law regarding the capital
adequacy of banks or bank holding companies, or any change or effectiveness in
Applicable Law (whether adopted before or after the Third Amended and Restated
Credit Agreement Effective Date) or any change in the interpretation or
administration or effectiveness thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by such Lender Party with any directive issued or
adopted after the Third Amended and Restated Credit Agreement Effective Date
regarding capital adequacy (whether or not having the force of law) of any such
governmental authority, central bank or comparable agency, has or would have
the effect of reducing the rate of return on any Lender Party’s capital, as a
consequence of its obligations hereunder with respect to the Loans, such Lender
Party’s Revolving


 


55

















 


Commitment or Zion Commitment or its obligations to issue or
participate in any Revolving Letter of Credit or Zion Letter of Credit
hereunder, to a level below that which it could have achieved but for such
adoption, change or compliance (taking into consideration such Lender Party’s
policies with respect to capital adequacy immediately before such adoption,
change or compliance and assuming that such Lender Party’s capital was fully
utilized prior to such adoption, change or compliance) by an amount reasonably
deemed by such Lender Party to be material, then such Lender Party shall
promptly notify EnergySolutions of such adoption, compliance or change. Upon
demand by such Lender Party, EnergySolutions shall promptly pay to such Lender
Party such additional amounts as shall be sufficient to compensate such Lender
Party for such reduced return, together with interest on such amount from the
fourth (4th) day after the date of demand until payment in full thereof at the
Default Rate. A certificate of such Lender Party setting forth the amount to be
paid to such Lender Party by EnergySolutions as a result of any event referred
to in this paragraph and supporting calculations in reasonable detail shall be
conclusive, absent manifest error. For the avoidance of doubt, this Section 2.13 shall not apply to Taxes.


 


Section 2.14                                Taxes.


 


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


 


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


 


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


 


56

















 


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


 


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


 


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


 


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


 


57

















 


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


 


(g)           If
the Administrative Agent or any Lender determines, in its good faith sole
discretion, that it has received a refund of any Covered Taxes or Other Taxes
as to which it has been indemnified by a Loan Party or with respect to which
the Loan Party has paid additional amounts pursuant to this Section 2.14, it shall pay over such refund to such
Loan Party (but only to the extent of indemnity payments made, or additional
amounts paid, by such Loan Party under this Section 2.14
with respect to the Covered Taxes or Other Taxes giving rise to such refund),
net of all out-of-pocket expenses of such Agent or such Lender and without interest
(other than any interest paid by the relevant governmental authority with respect
to such refund); provided that the Loan Party, upon the request of such
Agent or such Lender, agrees to repay the amount paid over to such Loan Party
to such Agent or such Lender in the event such Agent or such Lender is required
to repay such refund to such governmental authority. This paragraph shall not
be construed to require any Agent or any Lender to make available its tax
returns (or any other information relating to its Taxes which it deems
confidential) to the Loan Party or any other Person. Notwithstanding anything
to the contrary, in no event will any Lender be required to pay any amount to a
Loan Party the payment of which would place such Lender in a less favorable net
after-tax position than such Lender would have been in if the additional
amounts giving rise to such refund of any Covered Taxes or Other Taxes had
never been paid.


 


(h)           Each
Lender agrees that, upon the occurrence of any event giving rise to the operation
of Section 2.14 (a), Section 2.14(c) or Section 10.3
with respect to such Lender, it will, if requested by EnergySolutions, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided that such
designation is made on terms that, in the good faith sole judgment of such
Lender, cause such Lender and its lending office(s) to suffer no economic,
legal or regulatory disadvantage, and provided  further that
nothing in this Section 2.14 shall affect or
postpone any of the obligations of the Loan Party or the rights of any Lender
pursuant to Section 2.14(a), Section 2.14(c) or Section 10.3.


 


Section 2.15                                Increase
in Commitments.


 


(a)           Borrower
Request. EnergySolutions may by written notice to the Administrative Agent
elect to request (x) prior to the Revolving Maturity Date, an increase to
the existing Revolving Commitments (the “Incremental Commitments”), (y) after
the Third Amended and Restated Effective Date and prior to the Reclamation L/C
Facility Maturity Date, the establishment of one or more Reclamation L/C
Facility Commitments (“Reclamation L/C Facility Commitments”) and (z) prior
to the Term Loan Maturity Date, the establishment of one or more new Term
Commitments (each, an “Incremental Term Commitment”), in the case of the
Incremental Commitments and the Incremental Term Commitments, by an amount not
in excess of the Incremental Commitment Cap in the aggregate and not less than
$5,000,000 individually (or, if less, the amount of the Incremental Commitment
Cap) or, in the case of a Reclamation L/C Facility Commitment no more than the
Reclamation L/C Facility Commitment Cap. Each such notice shall specify (i) the
date (each, an “Increase Effective Date”) on which EnergySolutions
proposes that the increased or new Commitments shall be effective, which shall
be a date not less than 10 Business Days after the date on which such notice is
delivered to the Administrative Agent and (ii) the identity of the
financial institution to whom EnergySolutions proposes any portion of such
increased or new Commitments be allocated and the amounts of such allocations; provided
that any existing Lender approached to provide all or a portion of the
increased or new Commitments may elect or decline, in its sole discretion, to
provide such increased or new Commitment.


 


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(b)           Conditions.
The increased or new Commitments shall become effective, as of such Increase
Effective Date; provided that:


 


(i)      each of the conditions set
forth in Section 3.2 shall be satisfied;


 


(ii)     no Default or Event of
Default shall have occurred and be continuing or would result from the borrowings
to be made on the Increase Effective Date and the use of proceeds thereof;


 


(iii)    EnergySolutions shall deliver
or cause to be delivered any legal opinions or other documents reasonably
requested by the Administrative Agent in connection with any such transaction.


 


(c)           Terms
of New Loans and Commitments. The terms and provisions of Loans made pursuant
to the new Commitments shall be as follows:


 


(i)      terms and provisions of
Loans made pursuant to Incremental Term Commitments (“Incremental Term Loans”)
shall be, except as otherwise set forth herein, identical to the existing Term
Loans (it being understood that Incremental Term Loans may be part of an existing
tranche of Term Loans);


 


(ii)     any such Incremental Term
Loans shall not amortize (on a percentage basis) any faster than the existing
Term Loans and shall not mature prior to the Term Loan Maturity Date;


 


(iii)    in the event that the
Applicable Margin for the Incremental Loans (inclusive of upfront fees and OID
payable to such Lenders) is greater than the Applicable Margin for the existing
Term Loans or the existing Revolving Loans, as applicable (inclusive of any
upfront fees and OID paid to the existing Lenders), then the Applicable Margin
for the corresponding class of existing Loans shall be increased to the extent
necessary such that the Applicable Margin for the existing class of Loans is
equal to the Applicable Margin for the Incremental Loans;


 


(iv)    participation in the
Incremental Term Commitments, Reclamation Facility Commitments and Incremental
Commitments shall be offered to banks, financial institutions and other
entities reasonably acceptable to EnergySolutions and the Administrative Agent;
and


 


(v)     the terms and provisions of
Revolving Loans made pursuant to new Commitments shall be identical to the
Revolving Loans.


 


(d)           Adjustment
of Revolving Loans. In the case of Incremental Commitments, each of the
Revolving Lenders having a Revolving Commitment prior to such Increase
Effective Date (the “Pre-Increase Revolving Lenders”) shall assign to
any Revolving Lender which is acquiring an Incremental Commitment on the
Increase Effective Date (the “Post-Increase Revolving Lenders”), and
such Post-Increase Revolving Lenders shall purchase from each Pre-Increase
Revolving Lender, at the principal amount thereof, such interests in the Revolving
Loans outstanding on such Increase Effective Date as shall be necessary in
order that, after giving effect to all such assignments and purchases, such
Revolving Loans will be held by Pre-Increase Revolving Lenders and
Post-Increase Revolving Lenders ratably in accordance with their Revolving
Commitments after giving effect to the Incremental Commitments.


 


(e)           Making
of New Term Loans. On any Increase Effective Date on which new Commitments
for Term Loans are effective, subject to the satisfaction of the foregoing
terms and conditions, each


 


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Lender of such
new Commitment shall make a Term Loan to EnergySolutions in an amount equal to
its new Commitment.


 


(f)            Equal
and Ratable Benefit. The Loans and Commitments established pursuant to this
paragraph shall constitute Loans and Commitments under, and shall be entitled
to all the benefits afforded by, this Agreement and the other Loan Documents,
and shall, without limiting the foregoing, benefit equally and ratably from the
Guarantees and security interests created by the Security Documents. The Loan
Parties shall take any actions reasonably required by the Administrative Agent
to ensure and/or demonstrate that the Lien and security interests granted by
the Security Documents continue to be perfected under the UCC or otherwise
after giving effect to the establishment of any such Incremental Term Loans or
Incremental Commitments.


 


Section 2.16                                Amendment
or Waiver of Term L/C Facility.


 


In addition to the amendment and waiver provisions provided in Section 11.12 hereto, the following amendment and
waiver provisions shall apply to the Term L/C Facility:


 


(a)           Any amendment or waiver or consent relating
to any delay or extension in the terms of repayment or of the expiration date
of any Term L/C Facility Commitment or Term L/C Facility Loan shall be made
only with the written consent by each Term L/C Facility Lender directly
affected thereby;


 


(b)           No amendment, waiver or consent shall,
unless in writing and signed by the Term L/C Facility Issuing Bank, in addition
to the Term L/C Facility Lenders required above, affect the rights or duties of
the Term L/C Facility Issuing Bank under this Agreement or any Term L/C Facility
Letter of Credit Agreement; and


 


(c)           In addition, any waiver, amendment or
modification of this Agreement that by its terms affects the rights or duties
under this Agreement of the Term L/C Facility Lenders (but not the Term
Lenders, the Revolving Lenders or Zion Lenders) may be effected by an agreement
or agreements in writing entered into by EnergySolutions and the requisite
percentage in interest of the affected class of Lenders that would be required
to consent thereto under Section 11.12
if such Lenders were the only Lenders hereunder at the time; provided  further,
that EnergySolutions shall pay to any Non-Consenting Lender any premium that
would be payable in the event of a prepayment on such date.


 


(d)           Notwithstanding the foregoing, the Term L/C
Facility Lenders agree that it is the intent of parties hereto to reflect the
economic consequences on the conversion of the synthetic letter of credit
facilities created pursuant to the Second Amended and Restated Credit Agreement
into the on-balance sheet Term L/C Facility, as contemplated by the terms
hereof. The Administrative Agent and EnergySolutions may (without the consent
of any Term L/C Facility Lenders) amend or supplement terms relating to the
Term L/C Facility to cure any ambiguity, defect or inconsistency or to make a
modification of a minor, consistency or technical nature or to correct a
manifest error.


 


Section 2.17                                [Reserved].


 


Section 2.18                                Termination
and Reduction of Commitments.


 


(a)           Termination
of Commitments. The Term Commitments expired on June 7, 2006. The
Revolving Commitments and the Revolving Letter of Credit Commitments shall
automatically terminate


 


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at 5:00 p.m.,
New York City time on the Revolving Maturity Date. The Term L/C Facility Letter
of Credit Commitments shall automatically terminate at 5:00 p.m., New York
City time, on the Third Amended and Restated Credit Agreement Effective Date. The
Zion L/C Commitment shall automatically terminate at 5:00 p.m., New York
City time, on the Zion L/C Maturity Date.


 


(b)           Borrower
Notice. EnergySolutions shall notify the Administrative Agent in writing of
any election to terminate or reduce the Revolving Commitments under this Section 2.18 at least three Business Days prior to the
effective date of such termination or reduction, specifying such election and
the effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
notice delivered by EnergySolutions pursuant to this Section shall be
irrevocable and any termination or reduction of the Revolving Commitments shall
be permanent. Each reduction of the Revolving Commitments shall be made ratably
among the Revolving Lenders in accordance with their respective Revolving
Commitments.


 


ARTICLE 2A.


 


Zion L/C Loans
and Zion Letters of Credit


 


Section 2A.1         Manner of Borrowing and Disbursement.


 


(a)           Issuance
of and Drawings and Reimbursement Under Letters of Credit.


 


(i)            Zion
Letter of Credit Issuance. The Zion Letters of Credit shall be issued on the
Third Amended and Restated Credit Agreement Effective Date or, in the case the
assignment of any Zion Commitment pursuant to Section 11.5(c),
on the date of such assignment.


 


(ii)           Participations.
Upon the issuance of a Zion Letter of Credit by the Zion Issuing Banks, the
Zion Issuing Banks shall be deemed, without further action by any party hereto,
to have sold to each Zion Lender, and each such Zion Lender shall be deemed,
without further action by any party hereto, to have purchased from the Zion
Issuing Banks, a participation in such Zion Letter of Credit in an amount for
each Zion Lender equal to the Dollar Equivalent of such Lender’s Pro Rata Share
of the Available Amount of such Zion Letter of Credit, effective upon the issuance
of such Zion Letter of Credit. In consideration and in furtherance of the
foregoing, each Zion Lender hereby absolutely and unconditionally agrees to pay
such Lender’s Pro Rata Share of each Zion L/C Disbursement made by the Zion
Issuing Banks and not reimbursed by EnergySolutions on the date due of such
Zion L/C Disbursement (or which has been so reimbursed but must be returned or
restored by the Zion Issuing Banks 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 Zion Issuing Banks 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 Zion L/C Disbursement. Each Zion Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this Section 2A.1(a) in respect of
Zion 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 Zion Lender shall not have
so made the amount of such Zion L/C Disbursement available to the Administrative
Agent, such Zion Lender agrees to pay to the Administrative Agent forthwith on
demand such amount together with interest thereon, for each day from the date
such Zion L/C Disbursement is due pursuant to Section 2A.3(b) until
the date such amount is paid to the Administrative Agent, at the Federal Funds
Rate for its account or the account of the Zion Issuing Banks, as applicable. If
such Lender shall pay to the Administrative Agent such amount for the account
of the Zion Issuing Banks on any Business


 


61

















 


Day, such
amount so paid in respect of principal shall constitute a Zion L/C Loan made by
such Lender on such Business Day for purposes of this Agreement, and the
outstanding principal amount of the Zion L/C Loan made by the Zion Issuing
Banks shall be reduced by such amount on such Business Day.


 


(iii)          Drawing
and Reimbursement. The payment by the Zion Issuing Banks of a draft drawn
under any Zion Letter of Credit shall constitute for all purposes of this
Agreement the making by the Zion Issuing Banks of a Zion L/C  Loan, which shall be a Base Rate Zion L/C
Loan, in the Dollar Equivalent of the amount of such draft.


 


(iv)          Letter
of Credit Reports. The Zion 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 Zion Letters of Credit
issued during the previous week and drawings during such week under all Letters
of Credit, (B) to each Zion Lender on or about the first Business Day of
each month a written report summarizing issuance and expiration dates of Zion
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 Zion 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 Zion Letters of Credit.


 


(v)           Failure
to Make Zion L/C Loans. The failure of any Lender to make the Zion L/C Loan
to be made by it on the date specified in Article 2A
shall not relieve any other Lender of its obligation hereunder to make its Zion
L/C  Loan on such date, but no Lender
shall be responsible for the failure of any other Lender to make the Zion
L/C  Loan to be made by such other Lender
on such date.


 


Section 2A.2         Repayment.


 


(a)           Any
unpaid principal and interest of the Zion L/C Loans and any other outstanding
Obligations under the Zion L/C Commitment shall be due and payable in full on
the Zion L/C Maturity Date.


 


(b)           The
Obligations of EnergySolutions and the Zion Lenders with respect to Zion
Letters of Credit under this Agreement, any Letter of Credit Agreement and any
other agreement or instrument relating to any Zion 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 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;


 


62

















 


(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.


 


Section 2A.3         Fees.


 


(a)           [Reserved].


 


(b)           Letter
of Credit Fees.


 


(i)            EnergySolutions
shall pay to the Administrative Agent for the account of each Zion Lender a
commission on such Zion Lender’s Pro Rata Share of the average daily aggregate
Available Amount of all Zion Letters of Credit outstanding from time to time at
a rate per annum equal to the Applicable Margin for Eurodollar Zion L/C Loans
under the Zion L/C 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, 2008, and on the Zion L/C 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 Zion Issuing Banks, for its own account, a Zion Letter of
Credit fronting fee in respect of each Zion Letter of Credit, payable in
arrears quarterly on the last Business Day of each calendar quarter and on the
Zion L/C Maturity Date, of such Zion Letter of Credit, computed at 0.25% per
annum of the face amount of such Zion Letter of Credit, and shall also pay to
the Zion Issuing Banks 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 Zion 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.


 


Section 2A.4         Pro Rata Treatment.


 


(a)           Loans.
Each Zion L/C Loan from the Lenders shall be made pro rata on the basis of the
respective Zion L/C Commitments of the Zion Lenders as set forth on Schedule
4-D with respect to Loans made under the Zion L/C Commitment.


 


(b)           Payments.
Except as specifically provided in Section 2.2
or Article 10 hereof or elsewhere in
this Agreement, each payment and prepayment of principal of the Zion L/C Loans
and each


 


63

















 


payment of interest on the Zion L/C Loans, shall be made to the Zion
Lenders pro rata on the basis of their respective unpaid principal amounts
outstanding immediately prior to such payment or prepayment. If any Zion Lender
shall obtain any payment (whether involuntary, through the exercise of any
right of set-off, or otherwise) on account of any Zion L/C Loans made by it in
excess of its ratable share of such Zion L/C Loans, such Zion Lender shall
forthwith purchase from the other Zion Lenders such interests (whether by
purchasing a participation or by assignment) in the applicable Zion L/C Loans
made by them as shall be necessary to cause such purchasing Zion 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 Zion Lender, such purchase from each Zion Lender shall be
rescinded and each such Zion Lender shall repay to the purchasing Zion 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 Zion Lender in respect of any Type of Loans shall be shared on
a pro rata basis only with other Lenders to which Loans of such Type are owing.
EnergySolutions agrees that any Zion Lender so purchasing a participation from
another Zion Lender pursuant to this Section 2A.4
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 Zion Lender were the direct creditor of EnergySolutions in the amount
of such participation.


 


Section 2A.5         Amendment or Waiver of Zion L/C Facility.


 


In addition to the amendment and waiver provisions provided in Section 11.12 hereto, the following amendment and
waiver provisions shall apply to the Zion L/C Facility:


 


(a)           Any
amendment, waiver or consent relating to any delay or extension in the terms of
repayment or of the expiration date of any Zion Commitment or Zion L/C Loan
shall be made only with the written consent by each Zion Lender directly
affected thereby;


 


(b)           No
amendment, waiver or consent shall, unless in writing and signed by the Zion
L/C Issuing Banks, in addition to the Zion Lenders required above, affect the
rights or duties of the Zion L/C Issuing Banks under this Agreement; and


 


(c)           In
addition, any waiver, amendment or modification of this Agreement that by its
terms affects the rights or duties under this Agreement of the Zion Lenders
(but not the Term Lenders, the Revolving Lenders or Term L/C Facility Lenders)
may be effected by an agreement or agreements in writing entered into by
EnergySolutions and the requisite percentage in interest of the affected class
of Lenders that would be required to consent thereto under Section 11.12
if such Lenders were the only Lenders hereunder at the time; provided  further
that EnergySolutions shall pay to any Non-Consenting Lender any premium that
would be payable in the event of a prepayment on such date.


 


64

















 


ARTICLE 3.


 


Conditions Precedent


 


Section 3.1                                      Conditions
Precedent to Initial Loans.


 


(a)           Agreement
Date. The obligation of any Lender to make a Loan on the Agreement Date was
subject to the satisfaction, or waiver in accordance with Section 11.12
of the Original Credit Agreement, of all of the conditions precedent set forth
in Section 3.1 of the Original Credit
Agreement.


 


(b)           Third
Amended and Restated Credit Agreement Effective Date. The obligation of any
Lender to make a Loan or a Zion Commitment or issue a Zion Letter of Credit on
the Third Amended and Restated Credit Agreement Effective Date is subject to
the satisfaction of all conditions precedent set forth below:


 


(i)      The Administrative Agent and
Zion Arrangers shall have received:


 


(A)          this Agreement, duly
executed by (i) Parent, EnergySolutions, the Administrative Agent and the
other parties hereto, and (ii) such other documentation as the
Administrative Agent shall reasonably determine necessary to evidence the new
Commitments and the guarantee and security thereof, in each case in form and
substance satisfactory to the Administrative Agent;


 


(B)          the loan certificate of
EnergySolutions, in substantially the form attached hereto as Exhibit L,
including a certificate of incumbency with respect to each Authorized
Signatory, together with appropriate attachments which shall include without
limitation, the following items:  (A) a
copy of the Articles of Organization of EnergySolutions, certified to be true,
complete and correct by the Utah Department of Commerce, and a true, complete
and correct copy of the operating agreement of EnergySolutions, (B) certificates
of good standing for EnergySolutions issued by the Secretary of State or
similar state official for each state in which EnergySolutions is required to
qualify or has qualified to do business, (C) a true, complete and correct
copy of the appropriate authorizing resolutions of EnergySolutions, authorizing
EnergySolutions to execute, deliver and perform this Agreement and the other
Loan Documents to which it is a party, and (D) a true, complete and
correct copy of any agreement in effect with respect to the voting rights, ownership
interests or management of EnergySolutions;


 


(C)          the results of a recent
lien search in each relevant jurisdiction (including, without limitation, in
the United States Patent and Trademark Office and the United States Copyright
Office) with respect to EnergySolutions and each Guarantor, and such search
shall reveal no liens on any of the outstanding shares issued by
EnergySolutions and no liens on any of the assets of EnergySolutions or any
Guarantor, other than liens permitted by the Loan Documents;


 


(D)          legal opinions of (i) Weil,
Gotshal & Manges LLP, counsel to EnergySolutions, (ii) Parr
Waddoups Brown Gee & Loveless, Utah counsel to EnergySolutions, and (iii) Morgan,
Lewis & Bockius LLP, special counsel to EnergySolutions and its 


 


65














 


Subsidiaries;
each as counsel to EnergySolutions and its Subsidiaries, addressed to each
Lender, the Administrative Agent and the Collateral Agent, in form and
substance reasonably satisfactory to the Administrative Agent and its counsel,
and dated as of the Third Amended and Restated Credit Agreement Effective Date;


 


(E)           a completed Perfection Certificate
substantially in the form of Exhibit R to this Agreement, executed
by an Authorized Signatory of each Loan Party, together with all attachments
contemplated thereby;


 


(F)           a loan certificate from Parent and each
other Loan Party, in substantially the form of Exhibit M, N
or O, as applicable, including a certificate of incumbency with respect
to each officer or partner authorized to execute Loan Documents on behalf of
such Person, together with appropriate attachments which shall include, without
limitation, the following items:  (A) a
copy of the certificate or articles of incorporation of such Person or
certificate of formation of such Subsidiary, as applicable, certified to be
true, complete and correct by the Secretary of State of the jurisdiction of
incorporation or of formation of such Subsidiary, (B) certificates of good
standing for such Person issued by the Secretary of State or similar state
official of each state in which such Person is organized or required to qualify
to do business, (C) a true, complete and correct copy of the by-laws,
operating agreement or partnership agreement, as applicable, of such Person,
and (D) a true, complete and correct copy of the resolutions of such
Person authorizing it to execute, deliver and perform the Loan Documents to
which it is a party;


 


(G)           copies of reasonably satisfactory insurance
brokers’ letters, binders or certificates covering the assets of EnergySolutions
and its Subsidiaries, and otherwise meeting and covering the requirements of Section 5.5 hereof;


 


(H)          [Reserved].


 


(I)            evidence that all other recordings and
filings of or with respect to each Security Document shall have been completed
and that all other actions that the Administrative Agent may reasonably deem
necessary or desirable in order to perfect and protect the liens and security
interests created under the Security Documents shall have been taken, completed
or otherwise provided for in a manner reasonably satisfactory to the
Administrative Agent (including, without limitation, receipt of duly executed
payoff letters and UCC-3 termination statements) and the Administrative Agent
shall have received such assurances, including, without limitation, title insurance
and opinions of counsel, as the Administrative Agent may deem appropriate to
establish the Loan Parties’ title to, and the due creation and perfection of
the Administrative Agent’s liens on and security interests in, the Collateral
and the absence of any unpermitted liens on or interests in the Collateral, in
form and substance satisfactory to the Administrative Agent; and


 


(J)            duly executed Notes (to the extent
requested by any Term L/C Facility Lenders).


 


(ii)           [Reserved].


 


(iii)          The Administrative
Agent, the Arranger and the Zion Arrangers shall have received all reasonable
costs, fees, expenses and other amounts due and payable on or prior to the 


 


66

















 


Third Amended and Restated Credit Agreement
Effective Date, including reimbursement or payment of all out-of-pocket
expenses (including the reasonable fees, disbursements and other charges of
Cahill Gordon & Reindel LLP, counsel for
the Administrative Agent, the Arranger and the Zion Arrangers) required to be
reimbursed or paid by EnergySolutions, and for which invoices have been
presented to EnergySolutions on or prior to the Third Amended and Restated
Credit Agreement Effective Date.


 


(iv)          The Administrative Agent
and the Zion Arrangers shall have received evidence reasonably satisfactory to
them that all material Necessary Authorizations, including all material
necessary consents to the execution, delivery and performance by
EnergySolutions of this Agreement and the other Loan Documents to which it is a
party and by the Subsidiaries of the Loan Documents to which they are parties,
have been obtained or made, are in full force and effect and are not subject to
any pending or threatened reversal or cancellation, and the Administrative
Agent shall have received a certificate of an Authorized Signatory so stating.


 


(v)           All financing
statements, the Deed of Trust, Mortgages and other documents relating to the
perfection of the Lender’s liens on and security interests in the Collateral
shall remain filed or recorded as provided pursuant to the Second Amended and
Restated Credit Agreement and the Second Amended and Restated Security
Documents.


 


(vi)          All intercompany
indebtedness of the Loan Parties shall have been subordinated to their
respective obligations hereunder, on terms reasonably acceptable to the
Administrative Agent.


 


(vii)         The Administrative Agent
and the Zion Arrangers shall have received a certificate of the chief financial
officer of EnergySolutions reaffirming as of the Third Amended and Restated
Credit Agreement Effective Date the Projections included in the Confidential
Information Memorandum or describing any changes therein, which shall not,
individually or in the aggregate, be materially adverse to the Lenders.


 


(viii)        The Lenders shall have
received a solvency certificate, signed by the chief financial officer of
EnergySolutions and in form and substance satisfactory to the Administrative
Agent, together with such other evidence reasonably requested by the Lenders,
confirming the solvency of EnergySolutions and its Subsidiaries on a consolidated
basis.


 


(ix)           The Administrative
Agent and the Zion Arrangers shall have received a Loan Party Acknowledgment,
in substantially the form attached hereto as Exhibit S, dated as of
the Third Amended and Restated Credit Agreement whereby each Loan Party (i) ratifies
and affirms its obligations under the Loan Documents executed by such Loan
Party, (ii) acknowledges, renews and extends its continued liability under
all such Loan Documents and agrees such Loan Documents remain in full force and
effect and (iii) agrees that the Security Documents secure all obligations
of the Loan Parties under the Third Amended and Restated Credit Agreement and
other Loan Documents.


 


(x)            The Administrative
Agent and the Zion Arrangers shall be satisfied that EnergySolutions shall have
received all requisite governmental and third parties approvals and consents
required pursuant to that certain Asset Purchase Agreement, dated as of December 11,
2007, by and among EnergySolutions, Exelon and the other parties thereto
relating to the Zion Acquisition and EnergySolutions’ decommissioning
obligations related thereto.


 


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Section 3.2             Conditions Precedent to Each Loan.


 


The obligation
of the Lenders to make each Loan (including the initial Loans hereunder but excluding
(i) a Letter of Credit Loan made by the Revolving Issuing Bank or a
Revolving Lender pursuant to Section 2.2(f),
(ii) a Zion L/C Loan pursuant to Section 2A.1(a),
(iii) a conversion of all or a portion of a Loan from one Type to the
other pursuant to Section 2.2(b) or
Section 2.2(c) and (iv) a
reborrowing or continuation of all or a portion of a Loan of the same Type
pursuant to Section 2.2(b) or Section 2.2(c)), and the obligation of either Issuing
Bank to issue a Letter of Credit (including the initial issuance) or renew or
extend a Letter of Credit, is subject to the further conditions precedent that
on the date of such Loan or issuance or renewal:


 


(a)           The following
statements shall be true (and each of the giving of the applicable Request for
Loan, or Notice of Issuance or Notice of Renewal and the acceptance by
EnergySolutions of the proceeds of such Loan or of such Letter of Credit or the
renewal of such Letter of Credit shall constitute a representation and warranty
by EnergySolutions that both on the date of such notice and on the date of such
Loan or issuance or renewal such statements are true):


 


(i)      All of the representations
and warranties of the Loan Parties under this Agreement and the other Loan
Documents, which, pursuant to Section 4.2
hereof, are made at and as of the time of such Loan, shall be true and correct
at such time in all material respects as if made at such time (except to the
extent they expressly relate to an earlier date, in which case they shall be
true and correct in all material respects as of such earlier date), both before
and after giving effect to the application of the proceeds of such Loan, and
after giving effect to any updates to information provided to the Lenders in accordance
with the terms of such representations and warranties; and


 


(ii)     No Default has occurred and
is continuing, or would result from such Loan or issuance or renewal or from
the application of the proceeds therefrom.


 


(b)           The Administrative
Agent shall have received a duly executed Request for Loan in accordance with
the requirements hereof.


 


(c)           The Administrative
Agent shall have received any such additional documentary information
reasonably requested and reasonably satisfactory to the Administrative Agent confirming
the satisfaction of any of the foregoing conditions in this Section 3.2 if, in the good faith judgment of Administrative
Agent, such request is warranted under the circumstances.


 


ARTICLE 4.


 


Representations and Warranties


 


Section 4.1             Representations and Warranties.


 


EnergySolutions
hereby agrees, represents and warrants in favor of the Administrative Agent,
the Arranger, the Zion Arrangers and each Lender that:


 


(a)           Organization;
Ownership; Power; Qualification. 
EnergySolutions is a limited liability company, or, to the extent
permitted by Section 7.4(b), a
corporation, duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization. 
EnergySolutions has the limited liability company power, or corporate
power, as applicable, and 


 


68

















 


authority to
own its properties and to carry on its business as now being and hereafter
proposed to be conducted.  Each
Subsidiary and Parent is a corporation, limited liability company or a partnership
(as the case may be) duly organized, validly existing and in good standing
under the laws of the state of its incorporation, organization or formation (as
the case may be), and has the necessary power and authority to own its
properties and to carry on its business as now being and hereafter proposed to
be conducted.  EnergySolutions, Parent
and each of their Subsidiaries are duly qualified, in good standing and
authorized to do business in each jurisdiction (other than their respective
jurisdictions of incorporation, organization or formation) in which the
character of their respective properties or the nature of their respective
businesses makes such qualification or authorization prudent, except where the
failure to be so qualified and in good standing would not reasonably be
expected to result in a Material Adverse Change.


 


(b)           Authorization;
Enforceability.  EnergySolutions has
the power and has taken all necessary action to authorize it to borrow
hereunder, to execute, deliver and perform this Agreement and each of the other
Loan Documents to which it is a party in accordance with their respective
terms, and to consummate the transactions contemplated hereby and thereby.  This Agreement has been duly executed and
delivered by EnergySolutions and is, and each of the other Loan Documents to
which EnergySolutions is party is, a legal, valid and binding obligation of
EnergySolutions enforceable against EnergySolutions in accordance with its
terms, subject, as to enforcement of remedies, to the following
qualifications:  (i) an order of
specific performance and an injunction are discretionary remedies and, in
particular, may not be available where damages are considered an adequate
remedy at law, (ii) enforcement may be limited by bankruptcy, insolvency,
liquidation, reorganization, reconstruction and other similar laws affecting enforcement
of creditors’ rights generally (insofar as any such law relates to the
bankruptcy, insolvency or similar event of EnergySolutions), and (iii) enforcement
may be subject to general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law) and may be
limited by public policies which may affect the enforcement of certain rights
or remedies provided for in this Agreement or the Security Documents.


 


(c)           Subsidiaries and
Parent; Authorization; Enforceability. 
EnergySolutions’ Subsidiaries, Parent’s Subsidiaries and all Investments
of EnergySolutions and Parent and their direct and indirect ownership thereof
are set forth as of the Third Amended and Restated Credit Agreement Effective
Date on Schedule 1, and except as set forth on Schedule 1
attached hereto, EnergySolutions and Duratek have the unrestricted right to
vote the issued and outstanding shares of their corporate Subsidiaries, and the
right to vote their partnership and membership interests in such partnership
and limited liability company Subsidiaries in accordance with the terms of the
applicable partnership agreement or operating agreement shown thereon; such
shares of such corporate Subsidiaries have been duly authorized and issued and
are fully paid and nonassessable.  Each
of EnergySolutions, Parent and their Subsidiaries has the necessary power and
authority, and has taken all necessary action to authorize it, to execute,
deliver and perform each of the Loan Documents to which it is a party in
accordance with their respective terms and to consummate the transactions
contemplated by this Agreement and by such Loan Documents.  Each of the Loan Documents to which a Loan
Party is party is a legal, valid and binding obligation of such Person,
enforceable against such Person in accordance with its terms, subject, as to
enforcement of remedies, to the following qualifications:  (i) an order of specific performance and
an injunction are discretionary remedies and, in particular, may not be
available where damages are considered an adequate remedy at law, (ii) enforcement
may be limited by bankruptcy, insolvency, liquidation, reorganization,
reconstruction and other similar laws affecting enforcement of creditors’
rights generally (insofar as any such law relates to the bankruptcy, insolvency
or similar event of such Subsidiary), and (iii) enforcement may be subject
to general principles of equity 


 


69

















 


(regardless of
whether such enforcement is considered in a proceeding in equity or at law) and
may be limited by public policies which may affect the enforcement of certain
rights or remedies provided for in such Loan Documents.


 


(d)           Consents, Applicable
Law, Conflicts and Liens.  Except as
set forth on Schedule 6 hereto, the execution, delivery and performance,
in accordance with their respective terms, by EnergySolutions of this Agreement
and any Notes, and by EnergySolutions, Parent and their respective Subsidiaries
of each of the other Loan Documents to which they are respectively party, and
the consummation of the transactions contemplated hereby and thereby, do not
and will not (i) require any material consent or approval, governmental or
otherwise, not already obtained, (ii) violate any Applicable Law
respecting EnergySolutions, Parent or their respective Subsidiaries, (iii) conflict
with, result in a breach of or constitute a default under the certificate or
articles of incorporation or by-laws, operating agreement or the partnership
agreement, as the case may be, as such documents are amended, of
EnergySolutions, of Parent or of any of their respective Subsidiaries, or under
any material indenture, agreement, or other instrument, to which EnergySolutions,
Parent or any of their respective Subsidiaries is a party or by which any of
them or their respective properties may be bound, (iv) conflict with,
result in a breach of, or constitute a default or violation of, the terms and
conditions of any of the Necessary Authorizations, except in the case of any
conflict, breach, default or violation of any of the Environmental Permits not
reasonably expected to result, individually or in the aggregate with all other
exceptions to the representations and warranties in Section 4.1(a)(i) hereof,
in a Material Adverse Change or (v) result in or require the creation or
imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by EnergySolutions, Parent or any of their respective
Subsidiaries except for Permitted Liens.


 


(e)           Business.  On the Third Amended and Restated Credit
Agreement Effective Date, Parent is a direct or indirect holding company for
each of EnergySolutions and Duratek and Parent, together with its Subsidiaries,
each is engaged in the business of owning, operating and investing in the
Permitted Businesses.


 


(f)            Licenses, Etc.  The Necessary Authorizations have been duly
authorized by the grantors thereof and are in full force and effect.  EnergySolutions and the Subsidiaries are in
compliance in all material respects with all of the provisions of the Necessary
Authorizations.  Except as set forth on Schedule 7
attached hereto, EnergySolutions and the Subsidiaries have secured all
Necessary Authorizations and all such Necessary Authorizations are in full
force and effect.  Except as set forth on
Schedule 7 attached hereto, none of the material Necessary Authorization
is the subject of any pending or, to EnergySolutions’ or Duratek’s knowledge,
threatened revocation.


 


(g)           Compliance with Law.  EnergySolutions, Parent and their respective
Subsidiaries are in compliance with all Applicable Law except to the extent the
failure to do so would not reasonably be expected to result in a Material
Adverse Change.


 


(h)           Title to Assets.  Each of EnergySolutions, Parent and each of
their respective Subsidiaries has (i) good, defensible, insurable, legal
and beneficial fee simple title to (in the case of fee interests in real
property), (ii) valid and enforceable leasehold interests in (in the case
of leasehold interests in real or personal property) and (iii) good and
defensible title to (in the case of all other personal property), all of its
properties and assets.  None of such
properties or assets held by Parent, EnergySolutions or their respective
Subsidiaries, is subject to any Liens, except for Permitted Liens.  Except for financing statements evidencing
Permitted Liens, no financing 


 


70

















 


statement
under the Uniform Commercial Code as in effect in any jurisdiction and no other
filing which names Parent, EnergySolutions or their respective Subsidiaries as
debtor or which covers or purports to cover any of the assets of Parent,
EnergySolutions or their respective Subsidiaries is currently effective and on
file in any state or other jurisdiction, and none of Parent, EnergySolutions or
their respective Subsidiaries has signed any such financing statement or filing
or any security agreement authorizing any secured party thereunder to file any
such financing statement or filing.


 


(i)            Litigation.  There is no action, suit, revocation,
proceeding or investigation pending against, or, to EnergySolutions’ knowledge,
threatened against or in any other manner relating adversely to, Parent,
EnergySolutions or their respective Subsidiaries or any of their respective
properties, including without limitation any of the Necessary Authorization, in
any court or before any arbitrator of any kind or before or by any governmental
body, except as described on Schedule 8 attached hereto as of the Third
Amended and Restated Credit Agreement Effective Date or as subsequently
disclosed to the Administrative Agent and the Lenders pursuant to Section 6.5 hereof; and no such action, suit,
proceeding or investigation could reasonably be expected to have an adverse
outcome which (i) calls into question the validity of this Agreement or
any other Loan Document, (ii) challenges the continued possession and use
of any License, by Parent, EnergySolutions or their respective Subsidiaries or
any Person in which EnergySolutions has, directly or indirectly, an Investment
and such challenge could result in a Default pursuant to Section 8.1(k) hereof,
or (iii) except as expressly set forth on Schedule 8 (or as
disclosed pursuant to Section 6.5),
could have a Material Adverse Change.


 


(j)            Taxes.  Except as set forth on Schedule 16, as
of the Third Amended and Restated Credit Agreement Effective Date, all federal,
material state and other material tax returns (including information returns)
of Parent, EnergySolutions and each of their respective Subsidiaries required
by law to be filed have been duly filed and all federal, state and other Taxes,
including, without limitation, withholding taxes, assessments and other
governmental charges or levies required to be paid by Parent, EnergySolutions
or their respective Subsidiaries or imposed upon Parent, EnergySolutions or
their respective Subsidiaries or any of their respective properties, income,
profits or assets, which are due and payable, have been paid, except (x) any
such taxes (i) the payment of which Parent, EnergySolutions or any of
their respective Subsidiaries is diligently contesting in good faith by
appropriate proceedings, (ii) for which adequate reserves in accordance
with GAAP have been provided on the books of Parent, EnergySolutions or their
respective Subsidiaries and (iii) as to which no Lien other than a
Permitted Lien has attached and no foreclosure, distraint, sale or similar
proceedings have been commenced and (y) except to the extent the failure
off such tax returns to have been so filed or such taxes to have been paid
would not reasonably be expected to have a Material Adverse Change.  Each of Parent, EnergySolutions or their
respective Subsidiaries has made adequate provision in accordance with GAAP for
all taxes not yet due and payable, except as could not reasonably be likely to,
individually or in the aggregate, have a Material Adverse Change.  Each of Parent, EnergySolutions or their
respective Subsidiaries is unaware of any proposed or pending tax assessments,
deficiencies or audits that could be reasonably expected to, individually or in
the aggregate, result in a Material Adverse Change.  None of Parent, EnergySolutions or their
respective Subsidiaries has ever been a party to any understanding or
arrangement constituting a “tax shelter” within the meaning of Section 6662(d)(2)(C)(iii) of
the Code or within the meaning of Section 6111(c) or Section 6111(d) of
the Code as in effect immediately prior to the enactment of the American Jobs
Creation Act of 2004, or has ever “participated” in a “reportable transaction”
within the meaning of Treasury Regulation Section 1.6011-4, except as
could not reasonably be likely to, individually or in the aggregate, have a
Material Adverse Change.


 


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(k)           Financial Statements.  EnergySolutions has furnished or caused to be
furnished to the Administrative Agent and the Lenders its (or its
predecessor’s) audited financial statements on a consolidated basis with its
Subsidiaries for the fiscal year ended December 31, 2007, which, together
with other financial statements furnished to the Administrative Agent and the
Lenders subsequent to the Agreement Date, are complete and correct in all
material respects and present fairly in accordance with GAAP the financial
position of EnergySolutions and its Subsidiaries on a consolidated basis on and
as at such dates and the results of operations for the periods then ended.  Except as provided on Schedule 9
attached hereto, none of EnergySolutions or any of its Subsidiaries has any
material liabilities, contingent or otherwise, other than (i) as disclosed
in the financial statements referred to in the preceding sentence, (ii) those
that would not reasonably be expected to have a Material Adverse Change and (iii) as
set forth or referred to in this Agreement.


 


(l)            No Adverse Change.  Since December 31, 2007, there has
occurred no event which has had or which could reasonably be expected to have a
Material Adverse Change.


 


(m)          ERISA.  EnergySolutions and each Subsidiary and each
of their respective Plans are in compliance in all respects with ERISA and the
Code, including Section 4980 B of the Code, except as could not reasonably
be expected to have a Material Adverse Change. 
Neither Parent nor any of its Subsidiaries has incurred any accumulated
funding deficiency within the meaning of Section 412 of the Code with
respect to any Plan.  No ERISA Affiliate
has incurred any accumulated funding deficiency within the meaning of Section 412
of the Code with respect to any ERISA Affiliate Plan, except as could not
reasonably be expected to have a Material Adverse Change.  No Reportable Event, for which the 30-day
notice requirement has not been waived, has occurred and is continuing with
respect to any Plan, except as could not reasonably be expected to result in a
Material Adverse Change.  No Plan or
trust created thereunder, or party in interest (as defined in Section 3(14)
of ERISA), or any fiduciary (as defined in Section 3(21) of ERISA), has
engaged in a “prohibited transaction” (as such term is defined in Section 406
of ERISA or Section 4975 of the Code) which would reasonably be expected
to subject Parent or any of its Subsidiaries to a tax or penalty in any amount
on “prohibited transactions” imposed by Section 502 of ERISA or Section 4975
of the Code or an obligation to indemnify any other person for such tax or
penalty, except as could not reasonably be expected to result in a Material
Adverse Change.  None of EnergySolutions,
any Subsidiary or any of their ERISA Affiliates (i) has incurred or
reasonably expects to incur any liability with respect to a withdrawal from any
Multiemployer Plan, except as could not reasonably be expected to have a
Material Adverse Change, or (ii) has received any notice concerning a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA, except as could not
reasonably be expected to have a Material Adverse Change.


 


(n)           Compliance with
Regulations T, U, and X.  None of
Parent, EnergySolutions or any of their respective Subsidiaries is engaged principally
in or has as one of its important activities the business of purchasing or
carrying, or extending credit for the purpose of purchasing or carrying, any
margin stock within the meaning of Regulations T, U, and X of the Board of Governors
of the Federal Reserve System; nor will any proceeds of the Loans be used for
such purpose.


 


(o)           Investment Company
Act.  None of Parent, EnergySolutions
or any of their respective Subsidiaries is required to register under the
provisions of the Investment Company Act of 1940, as amended, and neither the
entering into or performance by Parent, EnergySolutions or any of their respective
Subsidiaries of this Agreement nor the issuance of any Notes violates any
provision of such Act or requires any consent, approval or authorization of, or
registration with, 


 


72

















 


the Securities
and Exchange Commission or any other governmental or public body or authority
pursuant to any provisions thereof.


 


(p)           Governmental
Regulation.  Except as set forth on Schedule
6 hereto, none of Parent, EnergySolutions or any of their respective
Subsidiaries is required to obtain any consent, approval, authorization, permit
or license which has not already been obtained from, or effect any filing or
registration which has not already been effected with, any federal, state or
local regulatory authority in connection with the execution and delivery of
this Agreement.  None of Parent,
EnergySolutions or any of their respective Subsidiaries is required to obtain
any consent, approval, authorization, permit or license which has not already
been obtained from, or effect any filing or registration which has not already
been effected with, any federal, state or local regulatory authority in
connection with the performance, in accordance with their respective terms, of
this Agreement or any other Loan Document.


 


(q)           Absence of Default,
Etc.  Parent, EnergySolutions and all
of their respective Subsidiaries are in compliance in all respects with all of
the provisions of their respective certificates or articles of organization or
incorporation and by-laws, operating agreement or partnership agreements, as
the case may be, and no event has occurred or failed to occur (including,
without limitation, any matter which could create a Default hereunder by
cross-default) which has not been remedied or waived, the occurrence or
non-occurrence of which constitutes, or with the passage of time or giving of
notice or both would constitute, (i) an Event of Default or (ii) a material
default by Parent, EnergySolutions or any of their respective Subsidiaries
under any material agreement or other instrument relating to Indebtedness of
Parent, EnergySolutions or any of their respective Subsidiaries in the amount
of $5,000,000 or more, any of the Necessary Authorization, or any judgment,
decree or order in the amount of $5,000,000 or more to which Parent, EnergySolutions
or any of their respective Subsidiaries is a party or by which Parent,
EnergySolutions or any of their respective Subsidiaries or any of their
respective properties may be bound or affected. 
None of Parent, EnergySolutions or any of their respective Subsidiaries
is a party to or bound by any contract or agreement continuing after the Third
Amended and Restated Credit Agreement Effective Date, or bound by any
Applicable Law, that could have a Material Adverse Change or result in the loss
of any License.


 


(r)            Accuracy and
Completeness of Information.  All
information, reports, prospectuses and other papers and data relating to
Parent, EnergySolutions or any of their respective Subsidiaries and furnished
by or on behalf of Parent, EnergySolutions or any of their respective Subsidiaries
to the Administrative Agent or the Lenders (including, without limitation, the
Confidential Information Memorandum) were, taken as a whole, at the time
furnished, true, complete and correct in all material respects to the extent
necessary to give the Administrative Agent and the Lenders true and accurate
knowledge of the subject matter.  No fact
or situation is currently known to EnergySolutions which has had or could
reasonably be expected to have a Material Adverse Change.


 


(s)           Agreements with
Affiliates and Management Agreements. 
Except as set forth on Schedule 10 attached hereto or otherwise
permitted hereunder, none of Parent, EnergySolutions or any of their respective
Subsidiaries has (i) any written agreements or binding arrangements of any
kind with any Affiliate or (ii) any material management or consulting agreements
of any kind.


 


(t)            Priority.  The Security Interest is a valid and
perfected first priority security interest in the Collateral in favor of the
Administrative Agent, for itself and for the ratable benefit 


 


73

















 


of the Secured
Parties, securing, in accordance with the terms of the Security Documents and
subject to the outstanding Obligations, and the Collateral is subject to no
Liens other than Permitted Liens.  The
Liens created by the Security Documents are enforceable as security for the outstanding
Secured Obligations in accordance with their terms with respect to the
Collateral subject, as to enforcement of remedies, to the following
qualifications:  (i) an order of
specific performance and an injunction are discretionary remedies and, in
particular, may not be available where damages are considered an adequate
remedy at law, (ii) enforcement may be limited by bankruptcy, insolvency,
liquidation, reorganization, reconstruction and other similar laws affecting enforcement
of creditors’ rights generally (insofar as any such law relates to the
bankruptcy, insolvency or similar event of Parent, EnergySolutions or any of
their respective Subsidiaries, as the case may be), and (iii) enforcement
may be subject to general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law) and may be
limited by Applicable Law that may affect the enforcement of certain rights or
remedies provided for in such Loan Documents.


 


(u)           Indebtedness.  Except as permitted pursuant to Section 7.1 hereof, none of Parent, EnergySolutions or
any of their respective Subsidiaries has outstanding, as of the Third Amended
and Restated Credit Agreement Effective Date, and after giving effect to the
initial Loans hereunder on the Third Amended and Restated Credit Agreement
Effective Date, any Indebtedness for Money Borrowed other than the Duratek
Loans, the Indebtedness set forth on Schedule 1-A and the Indebtedness
for Money Borrowed evidenced by this Agreement or any of the other Loan
Documents.


 


(v)           Investments.  All Investments of Parent, EnergySolutions
and all of their respective Subsidiaries are shown as of the Third Amended and
Restated Credit Agreement Effective Date on Schedule 1 attached hereto.


 


(w)          Real Estate.  As of the Third Amended and Restated Credit
Agreement Effective Date, other than as listed and described on Schedule 11
attached hereto, none of EnergySolutions or any of its Subsidiaries currently
owns, leases or has previously owned or leased any real property.


 


(x)            Intellectual
Property.  Parent, EnergySolutions
and each of their respective Subsidiaries own, possess or have the right to use
all licenses and rights to all patents, trademarks, trademark rights, trade
names, trade name rights, service marks and copyrights necessary to conduct
their business in all respects as now conducted, without known conflict with
any patent, trademark, trade name, service mark, license or copyright of any
other Person, except to the extent that the failure to so own, possess or have
the right to use the same could not reasonably be expected to result in a
Material Adverse Change, and such intellectual property of Parent, EnergySolutions
or any of their respective Subsidiaries is not subject to any Lien, other than
any Permitted Liens.  All such licenses
and rights with respect to patents, trademarks, trademark rights, trade names,
trade name rights, service marks and copyrights are in full force and effect in
all respects, except to the extent that the failure to so be in full force and
effect could not reasonably be expected to result in a Material Adverse Change,
and are not subject to any pending or, to the knowledge of EnergySolutions and
Parent, threatened attack or revocation.


 


(y)           Patriot Act.  None of Parent, EnergySolutions or any of
their respective Subsidiaries is in material violation of any laws relating to
terrorism or money laundering, including, without limitation, the Patriot Act.


 


74

















 


(z)            Solvency.  As of the Third Amended and Restated Credit
Agreement Effective Date, the Loan Parties, taken as a whole are and, both
before and after the making of any Loan hereunder on such date, will be
Solvent.


 


(aa)         Environmental Matters.


 


(i)           Except as, individually
or in the aggregate, would not reasonably be expected to have a Material
Adverse Change:


 


(A)          the operations of EnergySolutions, Duratek
and the Property are in compliance with all applicable Environmental Laws and
Environmental Permits in all material respects, including, without limitation,
obtaining, maintaining, and timely applying to obtain, amend or renew
Environmental Permits necessary for operations of EnergySolutions and the
Subsidiaries, and EnergySolutions and the Subsidiaries have no liability under
such Environmental Laws and Environmental Permits;


 


(B)          neither EnergySolutions nor any of the
Subsidiaries nor any real property currently or previously owned, operated or
leased by EnergySolutions or the Subsidiaries or any predecessor of EnergySolutions
or the Subsidiaries is subject to any pending Environmental Claim or
governmental investigation or, to EnergySolutions’ knowledge, threatened
Environmental Claim or governmental investigation, in each case, related to
Environmental Laws or Environmental Permits including, without limitation, any
such Environmental Claim or governmental investigation to revoke Environmental
Permits necessary for operations of EnergySolutions or the Subsidiaries;


 


(C)          each of EnergySolutions and Duratek has
obtained and currently maintains all funds required by applicable Environmental
Law to secure any obligations of EnergySolutions and Duratek for closure and
post-closure care of the Property;


 


(D)          no lien has been placed upon or, to
EnergySolutions’ or Duratek’s knowledge, is threatened to be placed upon the
Property under any Environmental Law;


 


(E)           neither EnergySolutions, Duratek nor any of
their past or current facilities or operations, nor any predecessor of
EnergySolutions or Duratek, nor any owner of premises leased or operated by
EnergySolutions or Duratek, is subject to any outstanding settlement or order,
writ, injunction, ruling, assessment, judgment, plan, arbitration award or
decree from any Person (i) identifying or alleging noncompliance with or
liability under any Environmental Laws, (ii) requiring Remedial Action or (iii) requiring
payment of any Environmental Claim;


 


(F)           there is no Environmental Claim pending
against or to EnergySolutions’ or Duratek’s knowledge threatened against,
affecting or involving any Person whose liability for such Environmental Claim
EnergySolutions or Duratek has assumed contractually or by operation of law;


 


(G)          neither EnergySolutions nor to
EnergySolutions’ knowledge any predecessor of EnergySolutions, nor to EnergySolutions’
knowledge any owner of premises 


 


75

















 


leased or
operated by EnergySolutions or any of its predecessors, has filed any notice under
any Environmental Law reporting a Release of Hazardous Material that is not
otherwise authorized under applicable Environmental Laws or Environmental
Permits; neither Duratek nor to Duratek’s knowledge any predecessor of Duratek,
nor to Duratek’s knowledge any owner of premises leased or operated by Duratek
or any of its predecessors, has filed any notice under any Environmental Law
reporting a Release of Hazardous Material that is not otherwise authorized
under applicable Environmental Laws or Environmental Permits;


 


(H)          except as authorized under the Environmental
Permits, in the ordinary course of the Permitted Business, there have been no
Releases of Hazardous Materials at, on or under any property now or previously
owned, operated or leased by EnergySolutions, Duratek or any of their
predecessors that have given or could give rise to Remedial Action under any
Environmental Law;


 


(I)            no property now or previously owned or
leased by EnergySolutions or Duratek (collectively, “Site”) is listed or
proposed for listing on the National Priorities List pursuant to CERCLA, on the
Comprehensive Environmental Response, Compensation and Liability Information
System List or on any similar state list of sites requiring investigation or
cleanup (collectively, “List”) and no such site of any predecessor of EnergySolutions
or any of the Subsidiaries is listed or, to EnergySolutions’ knowledge,
proposed for listing on any such List; and


 


(J)           to EnergySolutions’ and Duratek’s knowledge,
there is no proposed rule or introduced legislation (including any
proposed rule or introduced legislation under discussion by any applicable
state or local governmental authority) relating to applicable Environmental
Laws, the enforcement of applicable Environmental Laws, or the grant or
interpretation of applicable Environmental Permits, that would result in material
expenditures or changes in the operations of the Permitted Business; and


 


(ii)           Save and except those
representations and warranties in Section 4.1(d)(iv) with
respect to Environmental Permits, the representations and warranties of this Section 4.1(a) are the sole and exclusive
representations and warranties with respect to any Necessary Authorization
addressed in Section 4.1(f) that is
also an Environmental Permit, and with respect to any action, suit, revocation,
proceeding or investigation addressed in Section 4.1(i) that
is also an Environmental Claim.


 


(bb)         Employee Relations.  Each Loan Party and each of its Subsidiaries (A) has
adequate relations with its employees, and (B) is not, except as set forth
on Schedule 13, party to any collective bargaining agreement.  Except as set forth on Schedule 13, no
labor union has been recognized as the representative of any Loan Party’s or
any of its Subsidiaries’ employees, and no Loan Party is aware of any pending,
threatened or contemplated strikes, work stoppage or other material labor
disputes involving such Loan Party’s or any of its Subsidiaries’ employees.


 


(cc)         Use of Zion L/C
Facility.  All Zion Letters of Credit
issued under the Zion L/C Facility will be delivered to Exelon pursuant to the
Zion Acquisition and EnergySolutions’ decommissioning obligations related
thereto.


 


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Section 4.2             Survival of Representations and
Warranties, Etc.


 


All
representations and warranties made under this Agreement and the other Loan Documents
shall be deemed to be made, and shall be true and correct in all material
aspects, at and as of the Third Amended and Restated Credit Agreement Effective
Date and on the date of each Loan except (i) to the extent expressly
applicable only to the Third Amended and Restated Credit Agreement Effective
Date (in which case such representations and warranties shall have been true
and correct in all material respects as of the Third Amended and Restated
Credit Agreement Effective Date) or previously fulfilled in accordance with the
terms hereof, or (ii) to the extent already subject to a materiality
qualification (in which case such representations and warranties shall be true
and correct in all respects without further qualification).  All representations and warranties made under
this Agreement shall survive, and not be waived by, the execution hereof by the
Lenders and the Administrative Agent, any investigation or inquiry by any
Lender or the Administrative Agent, or the making of any Loan under this
Agreement.


 


ARTICLE 5.


 


General Covenants


 


So long as any
of the Obligations is outstanding and unpaid, any Letter of Credit (other than
a Collateralized Letter of Credit) or any Zion Letter of Credit shall be
outstanding or EnergySolutions shall have the right to borrow hereunder
(whether or not the conditions to borrowing have been or can be fulfilled), and
unless the Majority Lenders, or such greater number of Lenders as may be
expressly provided herein, shall otherwise consent in writing:


 


Section 5.1             Preservation of Existence and Similar
Matters.


 


EnergySolutions
and Parent each will, and will cause each of their respective Subsidiaries to:


 


(a)           except as otherwise
permitted hereunder, preserve and maintain its existence, rights, franchises,
licenses and privileges in the state of its incorporation, organization or formation
and in each other state in which it operates a material part of its business,
including, without limitation, the Necessary Authorizations (other than any
such the loss of which would not reasonably be expected to result in a Material
Adverse Change); and


 


(b)           qualify and remain
qualified and authorized to do business in each jurisdiction (other than its
jurisdiction of incorporation, organization or formation) in which the
character of its properties or the nature of its business makes such
qualification or authorization prudent, except to the extent the failure to do
so could not reasonably be expected to result in a Material Adverse Change.


 


Section 5.2             Business; Compliance with Applicable
Law.


 


EnergySolutions
and Parent each will, and will cause each of their respective Subsidiaries to, (a) engage
only in the Permitted Business and will not engage in any other business
activity, and (b) comply with the requirements relating to the Licenses
and of all Applicable Law except to the extent the failure to so comply could
not reasonably be expected to result in a Material Adverse Change.


 


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Section 5.3             Maintenance of Properties.


 


EnergySolutions
and Parent each will, and will cause each of their respective Subsidiaries to,
maintain or cause to be maintained in the ordinary course of business in good
working order and condition (reasonable wear and tear excepted and except for surplus
and obsolete properties and properties damaged from casualty) all properties
used in their respective businesses (whether owned or held under lease), and
from time to time make or cause to be made all needed and appropriate repairs,
renewals, replacements, additions, betterments and improvements thereto except,
in each case, to the extent the failure to do so could not reasonably be expected
to result in a Material Adverse Change.


 


Section 5.4             Accounting Methods and Financial
Records.


 


EnergySolutions
and Parent each will, and will cause each of their respective Subsidiaries on a
consolidated basis to, maintain a system of accounting established and
administered in accordance with GAAP, keep adequate records and books of
account in which complete entries will be made in accordance with GAAP and
reflecting all transactions required to be reflected by GAAP and keep accurate
and complete records in all material respects of their respective properties
and assets.  EnergySolutions and Parent
and their respective Subsidiaries will maintain a fiscal year ending on December 31.


 


Section 5.5             Insurance.


 


EnergySolutions
will, and will cause each Subsidiary to:


 


(a)           Maintain insurance
(other than business interruption coverage insurance) including, but not
limited to, public liability coverage insurance from responsible companies in
such amounts and against such risks to EnergySolutions and each Subsidiary as
is prudent and reasonably satisfactory to the Administrative Agent (including,
without limitation, larceny, embezzlement, employee fidelity and other criminal
misappropriation insurance);


 


(b)           Keep their respective
assets insured by responsible companies or self-insured on terms and in a
manner reasonably acceptable to the Administrative Agent against loss or damage
by fire, theft, burglary, pilferage, loss in transit, explosions and hazards
insured against by extended coverage, in amounts which are prudent for the
Permitted Businesses, in accordance with industry standards, and reasonably
satisfactory to the Administrative Agent, all premiums thereon to be paid by
EnergySolutions and each Subsidiary.


 


(c)           Require that each
insurance policy for EnergySolutions and the Subsidiaries provide for at least
thirty (30) days’ prior written notice to the Administrative Agent of any
termination of or proposed cancellation or nonrenewal of such policy, or
material reduction in coverage, and name, other than with respect to directors
and officers liability insurance coverage, the Collateral Agent (for itself and
for the ratable benefit of the Secured Parties) as additional named loss payee
to the extent of the Obligations and additional named insured.


 


(d)           Subject to Section 5.5(e), proceeds of insurance for
EnergySolutions and each Subsidiary paid to the Collateral Agent shall be
applied to the payment or prepayment of the Obligations as provided under Section 2.10(c) or Section 8.3
hereof, as applicable.  Any balance
thereof remaining after payment in full of the Obligations shall be paid to
EnergySolutions or as otherwise required by law.


 


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(e)           If in connection with
any claim EnergySolutions or any Subsidiary shall be entitled to receive
proceeds from any policy for insurance less than $10,000,000, then EnergySolutions
or such Subsidiary shall have the right to elect (i) to use such proceeds
to repair, replace (including, without limitation, the purchase of replacement
assets similar in function to the assets as to which such proceeds are
received) or rebuild the affected assets within one year after receipt of such
proceeds, (ii) to reinvest such proceeds in assets used or useful to the
business of EnergySolutions or the Subsidiaries or (iii) to remit such
proceeds to the Administrative Agent as provided under Section 5.5(d) hereof.  In the event such insurance proceeds from any
such claim exceed such threshold, the Administrative Agent shall hold such
proceeds pending its receipt from EnergySolutions of a plan for the use of such
proceeds and the approval of such plan by the Administrative Agent.


 


Section 5.6             Payment of Taxes and Claims.


 


EnergySolutions
and Parent each will, and will cause each of their respective Subsidiaries to
timely file all material tax returns (including information returns), required
by federal, state or other tax authorities and pay and discharge all Taxes,
including, without limitation, withholding taxes, assessments and governmental
charges or levies required to be paid by them or imposed upon them or their
income or profits or upon any properties belonging to them, prior to the date
on which penalties attach thereto, and all lawful claims for labor, materials
and supplies which, if unpaid, might reasonably be expected to become a Lien or
charge upon any of their properties, except (i) that no such tax,
assessment, charge, levy or claim need be paid which is being diligently
contested in good faith by appropriate proceedings and for which adequate
reserves shall have been set aside on the appropriate books, but only so long
as such tax, assessment, charge, levy or claim does not become a Lien or charge
(other than a Permitted Lien) and no foreclosure, distraint, sale or similar
proceedings shall have been commenced and (ii) for failures to do so that
would not, individually or in the aggregate, reasonably be expected to result
in a Material Adverse Change.


 


Section 5.7             Visits and Inspections.


 


EnergySolutions
and Parent each will, and will cause each of their respective Subsidiaries to,
permit representatives of the Administrative Agent and any of the Lenders, upon
reasonable notice to EnergySolutions, Parent or the relevant Subsidiary and
during normal business hours, to (a) visit and inspect the properties of
EnergySolutions or such Subsidiary, (b) inspect and make extracts from and
copies of their respective books and records, and (c) discuss with their
respective principal officers their respective businesses, assets, liabilities,
financial positions, results of operations and business prospects so long as
EnergySolutions is given reasonable opportunity to be present at such
discussions, all at EnergySolutions’ expense in the case of actions described
in the foregoing clauses (a) through (c) by the Administrative
Agent’s representatives; provided, however, that unless an Event
of Default shall have occurred and be continuing, EnergySolutions shall not be
obligated to reimburse the Administrative Agent for more than one such visit or
inspection per year.  EnergySolutions,
Parent and each of their respective Subsidiaries will also permit
representatives of the Administrative Agent and any of the Lenders to discuss
with their respective auditors their respective businesses, assets,
liabilities, financial positions, results of operations and business prospects,
at (y) EnergySolutions’ expense, in the case of discussions between the
Administrative Agent’s representatives and such respective auditors and (z) the
Lender’s expense, in the case of discussions between any Lender’s
representatives (other than those of the Administrative Agent, in its capacity
as a Lender) and such respective auditors absent an Event of Default (provided
that upon the occurrence


 


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and during the
continuation of any Event of Default, the same shall be at EnergySolutions’ expense),
in each case so long as EnergySolutions is given reasonable opportunity to be
present at such discussions.


 


Section 5.8             Payment of Indebtedness; Loans.


 


EnergySolutions
and Parent each will, and will cause each of their Subsidiaries to, pay any and
all of their respective Indebtedness when and as it becomes due, other than
amounts diligently disputed in good faith and for which adequate reserves have
been set aside in accordance with GAAP.


 


Section 5.9             Use of Proceeds.


 


No proceeds of
Loans hereunder shall be used for the purchase or carrying or the extension of
credit for the purpose of purchasing or carrying any margin stock within the
meaning of Regulations T, U and X of the Board of Governors of the Federal
Reserve System.


 


Section 5.10           Real Estate.


 


EnergySolutions
and Parent each at its sole cost and expense will, and will cause their respective
Subsidiaries (other than Special Purpose Subsidiaries) to, grant and record in
the appropriate recording office (i) the Deed of Trust, (ii) the Deed
of Trust Amendment and (iii) a mortgage (or deed of trust as applicable in
a relevant jurisdiction) securing the Secured Obligations to the Collateral
Agent, for itself and for the ratable benefit of the Secured Parties, in form
and substance reasonably satisfactory to the Collateral Agent (each such
mortgage or deed of trust being a “Mortgage”), covering each material
fee-owned parcel of real estate acquired directly or indirectly by
EnergySolutions and Parent or any of their respective Subsidiaries (other than
Special Purpose Subsidiaries) after the Agreement Date.  Such Mortgage shall be granted and recorded,
promptly (but in no event more than 30 days) after any such acquisition.  EnergySolutions and Parent each at its sole
cost and expense will, and will cause its Subsidiaries to, deliver to the
Collateral Agent all documentation, including opinions of counsel and policies
of title insurance, which in the reasonable opinion of the Collateral Agent is
appropriate, either in connection with any request for approval of a proposed
Permitted Acquisition or Real Property Acquisition or thereafter in connection
with such grant, including without limitation any survey or any Phase I
environmental audit requested by the Collateral Agent or any Lender in form and
substance acceptance to such requesting party.


 


Section 5.11           Indemnity.


 


EnergySolutions
and Parent, each for itself and on behalf of each of their respective Subsidiaries,
agree jointly and severally to indemnify and hold harmless each Lender and the
Administrative Agent and each of their respective affiliates, employees,
representatives, officers, trustees, directors, successors and assigns (any of
the foregoing shall be an “Indemnitee”) from and against any and all
claims, liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, reasonable attorneys’ (limited to the reasonable
out-of-pocket fees and expenses of one outside counsel to all Indemnitees with
such local counsel as may be necessary), experts’, agents’ and consultants’
fees and expenses (as such fees and expenses are incurred) and demands by any
party, including the costs in connection with any investigation, litigation or
proceeding or preparation of a defense in connection therewith, whether or not
EnergySolutions, Parent or any of their Subsidiaries, or the Person seeking
indemnification is the prevailing party, 


 


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whether or not
such investigation, litigation or proceeding is brought by any Loan Party, its
members, managers, directors, shareholders or creditors or an Indemnitee or any
other Person, and whether or not any Indemnitee is otherwise a party thereto, (a) resulting
from any breach or alleged breach by EnergySolutions, Parent or any of their
Subsidiaries of any representation, warranty or covenant made hereunder or
under any other Loan Document; (b) arising out of or in connection with (i) any
Commitment, any Loans, any Letter of Credit or otherwise under this Agreement
or any other Loan Document (including the taking of Collateral for the Secured
Obligations), including the use of the proceeds of Loans or any Letter of
Credit hereunder in any fashion by EnergySolutions, Parent or any of their
respective Subsidiaries or the performance of their respective obligations
under the Loan Documents by EnergySolutions, Parent or any of their respective
Subsidiaries, (ii) allegations of any participation by the Lenders or the
Administrative Agent, or any of them, in the affairs of EnergySolutions, Parent
or any of their respective Subsidiaries, or allegations that any of them has
any joint liability with EnergySolutions, Parent or any of their respective
Subsidiaries for any reason, (iii) any claims against the Lenders or the
Administrative Agent, or any of them, by any shareholder, partner or other
investor in or lender to EnergySolutions, Parent or any of their respective
Subsidiaries, by any brokers or finders or investment advisers or investment
bankers retained by EnergySolutions or Parent or by any other third party,
arising out of any Commitment, any Loans, any Letter of Credit or otherwise
under this Agreement or any other Loan Document, (iv) the presence, use,
generation, treatment, storage, recycling, management, Release or threatened
Release of any Hazardous Material at, in, on or under, or the transport of
Hazardous Materials to or from, property presently or formerly owned or
operated by EnergySolutions or Duratek or their predecessors, Parent or any of
their respective Subsidiaries, (v) any Environmental Claim, (vi) the
actual or alleged violation of any Environmental Law or Environmental Permit, (vii) any
Environmental Testing or Environmental Clean-up Activities required by any
applicable governmental authority or Environmental Law, (viii) any
undertaking or action in response to a request for information, order or notice
from, or investigation by, any governmental authority acting under any
applicable Environmental Law, or (ix) any claims relating to natural
resource damages, property damage (including diminution in value) or the death,
personal injury or harm to any Person actually or allegedly arising from or
relating to acts or omissions of EnergySolutions or Duratek or their
predecessors, Parent or any of their respective Subsidiaries or to conduct by
any Person on property presently or formerly owned or operated by EnergySolutions,
Parent or any of their respective Subsidiaries; or (c) in connection with
fees and other charges payable in connection with the Loans, or the execution,
delivery and enforcement of this Agreement, the Security Documents, the other
Loan Documents, and any amendments thereto or waivers of any of the provisions
thereof; in the case of clause (a), (b) or (c), unless the Person seeking
indemnification hereunder is determined in such case to have acted with gross
negligence or willful misconduct or in breach of the Loan Documents, in any
case by a final, non-appealable judicial order. 
The obligations of EnergySolutions, Parent and their respective Subsidiaries
under this Section 5.11 are in addition
to, and shall not otherwise limit, any liabilities which EnergySolutions, Parent
or any respective Subsidiary might otherwise have in connection with any
warranties or similar obligations of EnergySolutions, Parent or such respective
Subsidiary in any other agreement or instrument or for any other reason.  For the avoidance of doubt, nothing in this Section 5.11 shall be construed so as to apply to the
indemnification of Taxes that are neither Covered Taxes nor Other Taxes.


 


Section 5.12           Interest Rate Hedging.


 


Within sixty
(60) days from the Third Amended and Restated Credit Agreement Effective Date,
and at the end of each fiscal quarter thereafter, EnergySolutions shall have
entered into or maintained in effect one or more Hedge Agreements in such
aggregate notional amount as necessary so that, with respect 


 


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to no less
than thirty-three percent (33%) of the then outstanding aggregate principal
balance of the Term Loans and the Duratek Loans, EnergySolutions’ obligations
to make floating rate interest payments thereunder will be hedged with fixed
rate payments to be paid under such Hedge Agreements.  Such Hedge Agreements shall provide interest
rate protection on terms (including, without limitation, consideration of the
creditworthiness of the other party to the proposed Hedge Agreement) reasonably
acceptable to (and with parties reasonably acceptable to) the Administrative
Agent for an average period of the lesser of (a) two (2) years from
the date of such Hedge Agreement or Hedge Agreements and (b) the period
remaining from the date thereof until the Term Loan Maturity Date.  All Secured Obligations of EnergySolutions to
any of the Lenders pursuant to any Secured Hedge Agreement shall rank pari
passu with all other Secured Obligations. 
Any prepayment, acceleration, reduction, increase or any other change in
the terms of the Loans hereunder will not alter the notional amount of any such
Secured Hedge Agreement or otherwise affect EnergySolutions’ obligation to
continue making payments under any such Secured Hedge Agreement, which will
remain in full force and effect notwithstanding any such prepayment,
acceleration, reduction, increase or change, subject to the terms of such
Secured Hedge Agreement.


 


Section 5.13           Covenants Regarding
Formation of Subsidiaries and the Making of Acquisitions.


 


At the time of
any Acquisition permitted hereunder by EnergySolutions, Parent or any of their
respective Subsidiaries, or the formation of any new Subsidiary of any of EnergySolutions,
Parent or any of their respective Subsidiaries which is permitted under this
Agreement, EnergySolutions and Parent each will, and will cause their
respective Subsidiaries, as appropriate, to, (i) in the case of the
formation or Acquisition of a new Subsidiary, provide to the Administrative
Agent an executed Subsidiary Security Agreement for such new Subsidiary (other
than any Non-U.S. Subsidiary or a Special Purpose Subsidiary, for which no such
Subsidiary Security Agreement is required), in substantially the form of Exhibit J
attached hereto, together with appropriate UCC-1 financing statements, as well
as an executed Subsidiary Guaranty for such new Subsidiary (other than any
Non-U.S. Subsidiary or Special Purpose Subsidiary, for which no such Subsidiary
Guaranty is required), in substantially the form of Exhibit H
attached hereto, which shall constitute both Security Documents and Loan
Documents for purposes of this Agreement, as well as a loan certificate for
such new Subsidiary, substantially in the form of Exhibit M, Exhibit N
or Exhibit O attached hereto, as appropriate, together with
appropriate attachments; (ii) in the case of any Acquisition by
EnergySolutions, Parent or any of their respective Subsidiaries or the
formation of any new Subsidiary, pledge to the Collateral Agent all of the
capital stock, limited partnership interests, general partnership interests, or
other securities or other equity or ownership interests of such Subsidiary or
Person which is acquired or formed, beneficially owned by EnergySolutions,
Parent or any of their respective Subsidiaries, as the case may be, as additional
Collateral for the Secured Obligations to be held by the Collateral Agent in
accordance with the terms of EnergySolutions’ Pledge Agreement, Parent Pledge
Agreement, Subsidiary Pledge Agreement or a new Subsidiary Pledge Agreement (it
being understood that (i) no Non-U.S. Subsidiary or Special Purpose
Subsidiary shall be required to execute any such Subsidiary Pledge Agreement
and (ii) no Loan Party shall be required to pledge any equity or ownership
interest in a newly acquired Subsidiary if (A) such pledge is prohibited
by the terms of such Subsidiary’s organizational documents or (B) such
Subsidiary is a Special Purpose Subsidiary) in substantially the form of Exhibit A
attached hereto, and execute and deliver to the Collateral Agent all such
documentation for such pledge as, in the reasonable opinion of the Collateral
Agent, is appropriate; provided that (A) in the case of any
Acquisition by EnergySolutions or Parent or any of their respective
Subsidiaries or the formation of any new Subsidiary that is a “first tier”
Non-U.S. Subsidiary, not more than 65% of the capital stock, limited
partnership interests, general partnership interests, or other securities or
other equity or 


 


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ownership
interests of any “first-tier” Non-U.S. Subsidiary or Person which is acquired
or formed, beneficially owned by EnergySolutions or Parent or any of their
respective Subsidiaries, as the case may be, shall be pledged to the Collateral
Agent as additional Collateral for the Secured Obligations to be held by the
Collateral Agent in accordance with the terms of EnergySolutions’ Pledge
Agreement, Parent Pledge Agreement, Subsidiary Pledge Agreement or a new
Subsidiary Pledge Agreement and (B) the requirement that any new
Subsidiary of any of EnergySolutions or Parent or any of their respective
Subsidiaries execute a Subsidiary Guaranty and a Subsidiary Security Agreement
shall not apply to a new non-wholly owned Subsidiary if, but only for so long
as, (x) such Subsidiary has total assets of less than $5,000,000
individually and (y) the total assets of such Subsidiary, together with
the total assets of all domestic Subsidiaries that do not Guarantee the Secured
Obligations, are less than $10,000,000 in the aggregate; and (iii) in any
case, provide all other documentation, including one or more opinions of
counsel reasonably satisfactory to the Collateral Agent, which in the reasonable
opinion of the Collateral Agent is appropriate with respect to such
Acquisition, Real Property Acquisition or the formation of such
Subsidiary.  Investments made by
EnergySolutions, Parent or any of their respective Subsidiaries after the Agreement
Date shall also be treated as additional Collateral and shall be subject to the
provisions of the appropriate Security Documents.  Any document, agreement or instrument
executed or issued pursuant to this Section 5.13
shall be a “Loan Document” for purposes of this Agreement.  Notwithstanding anything to the contrary set
forth in this Section 5.13, Parent shall execute
a Guaranty of the Secured Obligations in the form of Exhibit H, a
Security Agreement in the form of Exhibit J and a Pledge Agreement
in the form of Exhibit A.


 


Section 5.14           Maintenance of Rating.


 


The Loan
Parties shall at all times during the term hereof use commercially reasonable
efforts to maintain ratings in respect of the Loans from S&P and Moody’s.


 


Section 5.15           Environmental Compliance.


 


Except as,
individually or in the aggregate, would not reasonably be expected to result in
a Material Adverse Change, EnergySolutions and Duratek each shall:


 


(a)           comply, and cause all
other Persons to comply, with all Environmental Laws and Environmental Permits
now or hereafter applicable to the Property or the Permitted Business and
EnergySolutions and Duratek each shall have sole responsibility for all costs
and expenses (including legal, consultant and other professional fees and
expenses and costs of investigation) associated with such compliance;


 


(b)           obtain and maintain in
full force and effect all Environmental Permits required under applicable
Environmental Law for operation of the Permitted Business;


 


(c)           conduct and complete,
at its sole cost and expense, any investigation, study, sampling, monitoring or
testing (collectively “Environmental Testing”) and undertake any
investigation, clean-up, removal, remedial, corrective, mitigation, response,
monitoring or any other activity (collectively “Environmental Clean-up
Activities”) required by any applicable governmental authority or
Environmental Law with respect to Hazardous Materials at, in, on, under or from
the Property, and any such Environmental Testing or Environmental Clean-up
Activities shall be undertaken with appropriate diligence and in full
compliance with all applicable Environmental Laws;


 


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(d)           provide as promptly as
practicable (and in any event within 20 days of receipt thereof) to the
Collateral Agent written notice of and copies of all written nonprivileged and
material communications relating to (A) any pending or threatened
Environmental Claim pertaining to the Property, or the use or operation
thereof, EnergySolutions, Duratek, Parent or the Permitted Business, or (B) any
fact, condition, event or other circumstance with respect to the Property or
any other facility or property presently or formerly owned or operated by
EnergySolutions, Duratek, Parent or any Person for which EnergySolutions,
Duratek or Parent is responsible, which is reasonably likely to result in a
material Environmental Claim pertaining to the Property, EnergySolutions,
Duratek or Parent; all such notices shall describe in reasonable detail the
nature of the Environmental Claim, investigation, fact, condition, event or
other circumstance and EnergySolutions’, Duratek’s or Parent’s response
thereto;


 


(e)           at any time, if
EnergySolutions or Duratek receives notice that an adverse change in the
environmental condition of the Property has occurred or an adverse
environmental condition with respect to the Property has been discovered, and
at EnergySolutions’ or Duratek’s sole cost and expense, (i) diligently
commence (or cause another Person to commence) to cure such condition, to the
extent required by applicable Environmental Laws (including commencing any
evaluation or assessment of such conditions and the development of an
appropriate plan with respect thereto), within 30 days after receipt of such
notice (or such shorter period as may be required by applicable Environmental
Laws or in the event of an emergency) and (ii) thereafter diligently
prosecute (or cause another Person to diligently prosecute) such cure to
completion; and


 


(f)            EnergySolutions and
Parent shall provide to the Administrative Agent such detailed reports relating
to any material Environmental Claim as may reasonably be requested by the Administrative
Agent or the Lenders.


 


Section 5.16           Required Consents and Transfer of
Licenses in Event of Default.


 


If an Event of
Default specified in Section 8.1
shall have occurred and be continuing and the Administrative Agent exercises a
remedy under Section 8.2, EnergySolutions,
Duratek and Parent shall, at the request of the Administrative Agent:  (a) use commercially reasonable efforts
to seek and obtain all required prior approvals and consents to the direct or
indirect transfer of control of the Property, the Permitted Business or the
applicable Licenses or Environmental Permits, including all approvals and consents
required by any Environmental Law, License or Environmental Permit, (b) cooperate
with the Administrative Agent, or any receiver or other Person appointed by the
Administrative Agent, to assist such Person in identifying the Licenses and
Environmental Permits required to own, maintain, operate or transfer the
Property or the Permitted Business from and after the Event of Default, and (c) use
commercially reasonable best efforts to either transfer to the Administrative
Agent or a Person designated by the Administrative Agent the Licenses and
Environmental Permits of EnergySolutions, where permissible, or obtain new
Licenses and Environmental Permits for the Administrative Agent or Person
designated by the Administrative Agent. 
Such efforts, cooperation and assistance shall include, but are not
limited to, EnergySolutions’, Duratek’s, Parent’s or their respective agents’
attendance at public hearings and, to the extent necessary, the use of the
knowledge, expertise and information of EnergySolutions, Duratek, Parent and
their respective agents, experts and employees.


 


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Section 5.17           Subordination of Intercompany Loans.


 


Each Loan
Party covenants and agrees that any existing and future debt obligation of
Parent, EnergySolutions or any Subsidiary to any Non-U.S. Subsidiary shall be
subordinated to the Loans.


 


Section 5.18           Post Closing Matters.


 


Mortgages and
Mortgage Amendments. 
The Collateral Agent shall receive within 30 days (or such later date as
the Collateral Agent may agree to in its sole discretion) from the Third
Amended and Restated Credit Agreement Effective Date:


 


(a)           with respect to each
Mortgaged Property, an amendment to the Mortgage, Deed of Trust or Deed of
Trust Amendment, as applicable, duly executed and delivered by the applicable
Loan Party, in form appropriate for filing in the applicable Recorder’s Office
in order to perfect and protect the lien created thereunder in respect of the
real property interests described therein;


 


(b)           with respect to each
Mortgage, Deed of Trust and Deed of Trust Amendment, a copy of the existing
mortgage title insurance policy and an endorsement with respect thereto (collectively,
the “Mortgage Policy”) relating to the Mortgage, Deed of Trust or Deed
of Trust Amendment encumbering such Mortgaged Property assuring the Collateral
Agent that the Mortgage, Deed of Trust or Deed of Trust Amendment, as amended
by the amendment is a valid and enforceable first priority lien on such Mortgaged
Property in favor of the Collateral Agent for the benefit of the Secured
Parties free and clear of all defects and encumbrances and liens except as
expressly permitted by Section 7.2,
together with a completed Federal Emergency Management Agency Standard Flood
Hazard Determination with respect to each Mortgage, Deed of Trust and Deed of
Trust Amendment; and


 


(c)           with respect to each
amendment, opinions of local counsel to the Loan Parties, which opinions (x) shall
be addressed to the Arranger and each of the Lenders and be dated the Third
Amended and Restated Credit Agreement Effective Date, (y) shall cover the
enforceability of the Mortgage, Deed of Trust and Deed of Trust Amendment, as
amended by each amendment, and such other matters incident to the transactions
contemplated herein as the arranger may reasonably request and (z) shall
be in form and substance reasonably satisfactory to the Collateral Agent.


 


Section 5.19           [Reserved].


 


Section 5.20           [Reserved].


 


ARTICLE 6.


 


Information Covenants


 


So long as any of the Obligations is outstanding and unpaid, any Letter
of Credit (other than a Collateralized Letter of Credit) shall be outstanding
or EnergySolutions has a right to borrow hereunder (whether or not the
conditions to borrowing have been or can be fulfilled), and unless the Majority
Lenders,


 


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or such
greater number of Lenders as may be expressly provided herein, shall otherwise
consent in writing, EnergySolutions will furnish or cause to be furnished to
each Lender and the Administrative Agent, at their respective offices:


 


Section 6.1             Quarterly and Interim Financial
Statements and Information.


 


Within
forty-five (45) days after the last day of each of the first three quarters of
each fiscal year of Parent, unaudited balance sheets of Parent on a
consolidated basis with all of its Subsidiaries, as at the end of such quarter
and as of the end of the preceding fiscal year, and the related statements of
operations and the related statements of cash flows of Parent on a consolidated
basis with all of its Subsidiaries, for such quarter and for the elapsed
portion of the year ended with the last day of such quarter, which shall set
forth in comparative form such figures as at the end of and for such quarter
and the appropriate prior period (but only for such quarter and other periods
for which such comparative figures are available) and shall be certified by the
chief financial officer of Parent to be, in his or her opinion, complete and
correct in all material respects and to present fairly, in accordance with GAAP
(except as to the exclusion of certain Subsidiaries which should be
consolidated with EnergySolutions under GAAP), the financial position of Parent
on a consolidated basis with all of its Subsidiaries as at the end of such
period and the results of operations for such period, and for the elapsed
portion of the year ended with the last day of such period, subject only to
normal year-end adjustments.


 


Section 6.2             Annual Financial Statements and
Information.


 


Within one
hundred twenty (120) days after the end of each fiscal year of Parent, the audited
consolidated balance sheets of Parent on a consolidated basis with all of its
Subsidiaries, as of the end of such fiscal year, and the related audited
consolidated statements of operations for such fiscal year and, to the extent
available, and not previously provided to the Administrative Agent, for the
previous two (2) fiscal years, the related audited consolidated statements
of changes in members’ equity for such fiscal year and, to the extent available
and not previously provided hereunder, for the previous two (2) fiscal
years, and related audited consolidated statements of cash flows for such
fiscal year and, to the extent available, for the previous two (2) fiscal
years, which shall be accompanied by an opinion (without a “going concern” or
like qualification or exception and without any qualification or exception as
to the scope of such audit) of Ernst & Young LLP or other independent
certified public accountants of recognized national standing or otherwise
reasonably acceptable to the Administrative Agent, together with a statement of
such accountants that in connection with their audit, nothing came to their
attention that caused them to believe that Parent was not in compliance with
the terms, covenants, provisions or conditions of Section 7.7
hereof.


 


Section 6.3             Performance Certificates.


 


At the time
the annual and quarterly financial statements are furnished pursuant to Sections 6.1 and 6.2 hereof, the
Performance Certificate:


 


(a)           setting forth as at the
end of such quarterly period or fiscal year, as the case may be, whether or not
EnergySolutions or Parent was in compliance with the requirements of Section 7.7 hereof; and


 


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(b)           stating that, to his or
her knowledge, no Default or Event of Default has occurred as at the end of
such quarterly period or year, as the case may be, or, if a Default or an Event
of Default has occurred, disclosing each such Default or Event of Default and
its nature, when it occurred, whether it is continuing and the steps being
taken by EnergySolutions with respect to such Default or Event of Default.


 


Section 6.4             Copies of Other Reports.


 


(a)           Promptly upon receipt
thereof, copies of any final management report submitted to EnergySolutions or
Parent by EnergySolutions’ or Parent’s independent public accountants
including, without limitation, the report prepared in connection with the
annual audit referred to in Section 6.2.


 


(b)           Promptly upon receipt
thereof, copies of any material adverse notice or report regarding any License,
the loss of which could reasonably be expected to result in a Material Adverse
Change, held by EnergySolutions and Parent or any of their respective
Subsidiaries.


 


(c)           In connection with any
proposed Acquisition by EnergySolutions or any Subsidiary described in Section 7.6(d)(ii), or any proposed Real Property
Acquisition, and promptly upon each request, such data, certificates, reports,
statements, opinions of counsel prepared for the Administrative Agent and the
Lenders, or any of them, documents or further information regarding the
business, assets, liabilities, financial position, projections, results of
operations or business prospects of EnergySolutions or any of Subsidiary as the
Administrative Agent or any Lender may reasonably request, including, without
limitation, a Phase I environmental report in connection with any proposed Real
Property Acquisition.


 


(d)           Annually, a certificate
of insurance indicating that the requirements of Section 5.5
hereof remain satisfied for such fiscal year.


 


(e)           Annually, and in no
event later than January 31 of any year, a copy of Parent’s annual financial
forecasts for itself and its Subsidiaries for such fiscal year.


 


(f)            Within forty-five (45)
days after the last day of each fiscal quarter of Parent beginning on December 31,
2008 and ending on the Revolving Maturity Date, financial and operations status
reports relating to the Zion Acquisition and EnergySolutions’ decommissioning
obligations related thereto, in a form as agreed to by the Administrative Agent
and EnergySolutions.


 


(g)           Annually until the Term
Loan Maturity Date, and in no event later than January 31 of any year,
fund reports created for EnergySolutions by any trustee; provided that
such reports include (i) fund performance, (ii) beginning and end of
year allocation mix, (iii) beginning and end of year net asset value and (iv) a
summary of the investment policy.


 


Section 6.5             Notice of Litigation and Other Matters.


 


Notice
specifying the nature and status of any of the following events, promptly, but
in any event not later than fifteen (15) days after any officer of
EnergySolutions becomes aware of the occurrence of any of the following events:


 


(a)           the commencement of all
material proceedings and investigations by or before any governmental body and
all actions and proceedings in any court or before any arbitrator against, or
to the extent known to EnergySolutions or Parent, in any other way relating
materially 


 


87

















 


adversely to,
EnergySolutions, Parent or any of their Subsidiaries, or any of their
respective properties, assets or businesses or any License;


 


(b)           any adverse change with
respect to the business, assets, liabilities, financial position, results of
operations or business prospects of EnergySolutions or any Subsidiary, which
has had or could reasonably be expected to have a Material Adverse Change;


 


(c)           any Default or the
occurrence or non-occurrence of any event (A) that constitutes, or that
with the passage of time or giving of notice or both would constitute, a
material default by EnergySolutions, Parent or any of their respective
Subsidiaries under any material agreement other than this Agreement to which
EnergySolutions, Parent or any of their respective Subsidiaries is a party or
by which any of their respective properties may be bound, or (B) that
could reasonably be expected to have a Material Adverse Change, giving in each
case the details thereof and specifying the action proposed to be taken with
respect thereto;


 


(d)           (A) the occurrence
of a “prohibited transaction” (as such term is defined in Section 406 of
ERISA or Section 4975 of the Code) with respect to any Plan that would
result in the imposition on EnergySolutions or any of the Subsidiaries of a tax
or penalty, (B) any Reportable Event (for which the 30-day notice
requirement has not been waived) with respect to any Plan, (C) the
institution or, to the knowledge of EnergySolutions or any Subsidiary,
threatened institution by the PBGC of proceedings under ERISA to terminate or
to partially terminate any Plan or ERISA Affiliate Plan or appoint a trustee to
administer any such Plan, (D) the commencement of or, to the knowledge of
EnergySolutions or any Subsidiary, threatened commencement of any litigation
regarding any such Plan, in each case, that could, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Change;


 


(e)           the occurrence of any
event subsequent to the Third Amended and Restated Credit Agreement Effective
Date which, if such event had occurred prior to the Third Amended and Restated
Credit Agreement Effective Date, would have constituted an exception to the
representation and warranty in Section 4.1(m) of
this Agreement.


 


ARTICLE 7.


 


Negative Covenants


 


So long as any
of the Obligations is outstanding and unpaid, any Letter of Credit (other than
a Collateralized Letter of Credit) shall be outstanding or EnergySolutions has
a right to borrow from the Lenders hereunder (whether or not the conditions to
borrowing have been or can be fulfilled), and unless the Majority Lenders or
such greater number of Lenders as may be expressly provided herein, shall otherwise
consent in writing:


 


Section 7.1             Indebtedness of Parent, EnergySolutions
and Its Subsidiaries.


 


EnergySolutions
and Parent each shall not, and shall cause each of their respective
Subsidiaries not to, create, assume, incur or otherwise become or remain
obligated in respect of, or permit to be outstanding, any Indebtedness, or
enter into any Derivatives Contract, except:


 


(a)           the Obligations (other
than Loans made pursuant to Section 2.15);


 


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(b)           current accounts
payable, accrued expenses, customer advance payment liabilities in connection
with FASB 143, liabilities that are not Indebtedness for Money Borrowed and
liabilities that are related to litigation, in each case, incurred in, or
resulting from the conduct of, the ordinary course of the Permitted Business;


 


(c)           Indebtedness secured by
Permitted Liens described in clauses (g), (h) and (j) of the definition
of “Permitted Liens”;


 


(d)           Obligations under the
Secured Hedge Agreements;


 


(e)           Indebtedness expressly
permitted under Section 7.5 hereof;


 


(f)            Guaranties and
Indebtedness existing on the Third Amended and Restated Credit Agreement
Effective Date and listed on Schedule 14 (as reduced by any permanent
repayments of principal thereof), without giving effect to any subsequent
extension, renewal or refinancing thereof except to the extent set forth on Schedule
14, provided that the aggregate principal amount of the Indebtedness
to be extended, renewed or refinanced does not increase from that amount
outstanding at the time of any such extension, renewal or refinancing;


 


(g)           Indebtedness of
EnergySolutions and the Subsidiaries (other than Indebtedness of the type
acquired or assumed in accordance with Section 7.1(l))
evidenced by Capitalized Lease Obligations (to the extent permitted hereby) and
purchase money Indebtedness, provided that in no event shall the sum of
the aggregate principal amount of all Capitalized Lease Obligations and
purchase money Indebtedness permitted by this Section 7.1(g) exceed
$40,000,000 at any time outstanding;


 


(h)           so  long  as  no  Default  or  Event  of  Default  then  exists  or  would  result  therefrom,  Additional  Permitted  Debt  to  the  extent  that  (i)  such  Additional  Permitted  Debt  is  issued  to  the  seller  as  all  or  part  of  the  consideration  for  any  Permitted  Acquisition  or  Real  Property  Acquisition  or  (ii)  the  Net  Proceeds  thereof  are  used  within  90  days  after  the  date  of  issuance  thereof  to  finance  all  or  a  part  of  any  Permitted  Acquisition  or  Real  Property  Acquisition  (including  to  refinance  any  Indebtedness  of  either  the  Acquisition  Entity  or  the  business  acquired)  and  to  pay  the  related  fees  and  expenses,  provided  that  (x)  the  sum  of  (1)  the  aggregate  principal  amount  of  all  Additional  Permitted  Debt  incurred  pursuant  to  this  Section  7.1(h)  plus  (2)  the  aggregate  principal  amount  of  all  Indebtedness  incurred  pursuant  to  Section  7.1(i)  shall  not  exceed  $10,000,000  at  any  time  outstanding,  and  (y)  if  all  or  any  portion  of  the  Net  Proceeds  of  such  Additional  Permitted  Debt  are  not  so  used  within  such  90-day  period  (or  such  earlier  date,  if  any,  as  EnergySolutions  determines  not  to  (or  that  it  cannot)  consummate  a  Permitted  Acquisition  within  such  90-day  period),  such  remaining  portion  shall  be  repaid  to  the  extent  not  prohibited  by  the  terms  thereof,  and  to  the  extent  so  prohibited,  shall  be  applied  on  the  last  day  of  such  period  (or  such  earlier  date  of  determination,  if  any)  as  a  mandatory  prepayment  of  principal  of  the  Term  Loans  to  be  applied  in  accordance  with  Section  2.6(b)  hereof;


 


(i)            Indebtedness of a
Subsidiary acquired pursuant to a Permitted Acquisition (or Indebtedness
assumed at the time of a Permitted Acquisition of an asset securing such
Indebtedness) or Real Property Acquisition, provided that (x) such
Indebtedness was not incurred in connection with, or in anticipation or
contemplation of, such Permitted Acquisition or Real Property Acquisition, (y) such
Indebtedness does not constitute Indebtedness for Money Borrowed, it being
understood and agreed that Capitalized Lease Obligations and purchase money
Indebtedness shall not constitute Indebtedness for Money Borrowed for purposes
of this clause (y), and (z) the aggregate principal amount of all
Indebtedness permitted by this Section 7.1(i) shall
not exceed at 


 


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any time
outstanding the aggregate principal amount which, when added to the aggregate
principal amount of all Indebtedness then outstanding pursuant to Section 7.1(h), equals $10,000,000;


 


(j)            so long as no Default
or Event of Default then exists or would result therefrom, Indebtedness
incurred by EnergySolutions and the Subsidiaries in the ordinary course of the
Permitted Business, including without limitation the amount by which the
aggregate amount of performance or fidelity bonds permitted under Section 7.1(l) below exceeds the aggregate amount
of cash and Letters of Credit securing the same, not to exceed an aggregate
principal amount of $5,000,000 at any one time outstanding; provided
that no more than $2,500,000 of the Indebtedness incurred pursuant to this
clause (j) may be secured by a Lien on the property of EnergySolutions and
the Subsidiaries;


 


(k)           intercompany
Indebtedness to the extent permitted by Section 7.6(c)(v) or
7.6(c)(x);


 


(l)            EnergySolutions’
reimbursement and other obligations in connection with performance bonds and/or
fidelity bonds that are secured only by either cash proceeds of Revolving Loans
or by Letters of Credit issued hereunder, which bonds are required to be
furnished by EnergySolutions or such Subsidiary in connection with contracts
entered into by EnergySolutions or such Subsidiary in the ordinary course of its
Permitted Business;


 


(m)          Guaranties by
EnergySolutions or any Subsidiary Guarantor in respect of any Indebtedness of
EnergySolutions or any Subsidiary Guarantor, in each case, otherwise permitted
under this Section 7.1;


 


(n)           Indebtedness
representing replacement, renewal, extension, refinancing or refunding of the
foregoing (other than Section 7.1(a) and
Section 7.1(f)); provided, however,
that such Indebtedness does not exceed the principal amount of outstanding or
committed Indebtedness so replaced, renewed, extended, refinanced or refunded
plus financing fees and other expenses associated therewith; provided  further,
however, that (A) such replacing, renewing, extending, refinancing
or refunding Indebtedness shall have no mandatory repayments or redemptions
prior to the Indebtedness being replaced, renewed, extended, refinanced or
refunded and (B) in the case of any replacing, renewing, extending,
refinancing or refunding of Indebtedness pari passu to the Obligations
hereunder, the replacing, renewing, extending, refinancing or refunding
Indebtedness is made pari passu or subordinated to the Obligations hereunder
and, in the case of any replacing, renewing, extending, refinancing or
refunding of Indebtedness subordinated to the Obligations hereunder, the replacing,
extending, refinancing or refunding Indebtedness is made subordinate to the
Obligations hereunder to substantially the same or a greater extent as the Indebtedness
replaced, renewed, extended, refinanced or refunded;


 


(o)           Indebtedness of up to $240,000,000
aggregate principal amount in respect of the Duratek Loans under the Duratek
Loan Agreement and, so long as no Default or Event of Default has occurred and
is continuing or would result therefrom, Permitted Refinancing Indebtedness in
respect thereof;


 


(p)           Indebtedness from Loans
made pursuant to Section 2.15 hereto which is
used solely to finance a Permitted Acquisition (and to pay fees and expenses
related thereto); provided that after giving effect to the incurrence of
such Indebtedness (and any other Indebtedness incurred since the last day of
the immediately preceding test period) on a pro forma basis as if it was incurred
on the first day of the immediately preceding fiscal quarter, Parent would be
in compliance with Section 7.7;


 


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(q)           Indebtedness incurred
by Non-U.S. Subsidiaries in an aggregate amount not to exceed $15,000,000 at
any time outstanding;


 


(r)            Indebtedness of up to
$30,000,000 million aggregate principal amount incurred pursuant to a United
Kingdom working capital facility;


 


(s)           Indebtedness incurred
pursuant to the Zion Agreements;


 


(r)            Indebtedness of any Special Purpose
Subsidiary not to exceed $10,000,000 per such Special Purpose Subsidiary;


 


(s)           Unsecured
Guaranteed obligations by EnergySolutions or Parent of the payment or performance
of ZionSolutions pursuant to the Zion Acquisition; and


 


(t)            Unsecured
Guaranteed obligations by EnergySolutions or Parent of the payment or
performance of a Special Purpose Subsidiary, including any guarantee bond; provided
that no such individual Guaranty shall exceed $50,000,000 per Special Purpose
Subsidiary; provided further that the aggregate amount of all such Guaranties
shall not exceed $150,000,000.


 


Section 7.2             Limitation on Liens.


 


EnergySolutions
and Parent each shall not, and shall cause each of their respective
Subsidiaries not to, create, assume, incur or permit to exist or to be created,
assumed, incurred or permitted to exist, directly or indirectly, any Lien on
any of its properties or assets, whether now owned or hereafter acquired,
except for Permitted Liens.


 


Section 7.3             Amendment and Waiver.


 


EnergySolutions
and Parent each shall not, and shall cause each of their respective
Subsidiaries not to, except in connection with a transaction otherwise
permitted hereunder, enter into any amendment of its articles or certificate of
incorporation or organization or, as applicable, operating agreement or partnership
agreement, except in each case to the extent that the Administrative Agent
determines, in its reasonable credit judgment, that such amendment is not
material and not adverse to the interests of the Lenders.


 


Section 7.4             Liquidation, Merger, Disposition of
Assets.


 


(a)           Disposition of
Assets.  EnergySolutions and Parent
each shall not, and shall cause each of their respective Subsidiaries not to,
at any time sell, lease, license, abandon, transfer, assign or otherwise
dispose of any of their assets (other than Excluded Asset Sales), unless (i) any
Net Proceeds therefrom are applied as provided in Section 2.6(b) hereof,
(ii) any such sale, lease, license or disposition resulting in Net
Proceeds in excess of $1,000,000 is made for fair market value as determined by
the managers of EnergySolutions, (iii) at least 75% of the consideration
received consists of cash or readily marketable cash equivalents or the
assumption of Indebtedness of EnergySolutions or any Subsidiary and no Default
then exists or would be caused thereby (unless such sale, lease, license, abandonment
or other disposal would cure any such Default) and (iv) as to any such
sale, lease, license or other disposition where the aggregate consideration to
be received is in excess of $20,000,000, the Majority Lenders shall have given
their express prior written consent, after receiving such information and
documents as the Administrative Agent or any Lender may request.  At the time of any such Permitted Asset Sale
hereunder in which the aggregate consideration therefor exceeds $10,000,000,
EnergySolutions shall provide the Administrative Agent 


 


91

















 


and the
Lenders with projections assuming the consummation of the Permitted Asset Sale
and demonstrating pro forma compliance with Section 7.7
hereof for the remaining term of this Agreement.


 


(b)           Liquidation, Merger
or Consolidation.  EnergySolutions
and Parent each shall not, and shall cause each of their respective
Subsidiaries (other than a Special Purpose Subsidiary) not to, at any time liquidate
or dissolve itself (or suffer any liquidation or dissolution) or otherwise wind
up, or enter into any merger or consolidation; provided that if no
Default then exists or would be caused thereby, the following such transactions
are permitted:  (i) a merger or
consolidation among EnergySolutions and one or more of its Subsidiaries that is
a wholly-owned Subsidiary Guarantor, provided EnergySolutions is the
surviving Person; (ii) a merger or consolidation among Duratek and one or
more of its Subsidiaries that is a wholly-owned Subsidiary Guarantor, provided
Duratek is the surviving Person; (iii) a merger or consolidation between
or among two or more Subsidiaries; provided that if any of the entities
is a Subsidiary Guarantor, the surviving entity shall be a Subsidiary
Guarantor; (iv) an Acquisition permitted hereunder effected by a merger or
consolidation in which EnergySolutions or a Subsidiary is the surviving Person;
(v) a liquidation or dissolution of one or more Subsidiaries into its or
their parent entity (provided EnergySolutions or one of the Subsidiaries
is such parent entity); and (vi) any transaction or series of related
transactions whereby EnergySolutions becomes a corporation organized under the
laws of the State of Delaware or the State of Utah, so long as, following such
transaction or transactions, no Person other than Parent has an economic or
voting interest in EnergySolutions; provided that at least ten (10) days
prior to executing any transaction or transactions permitted by clause (vi) of
this Section 7.4(b), EnergySolutions
shall provide written notice to the Collateral Agent and shall execute any
amendment to the Loan Documents reasonably requested by the Collateral Agent to
maintain a valid and perfected first priority security interest in the
Collateral in favor of the Collateral Agent, for itself and for the ratable
benefit of the Secured Parties, securing, in accordance with the terms of the
Security Documents, the outstanding Secured Obligations.  Notwithstanding anything to the contrary in
any Loan Document (other than this Agreement), any reorganization permitted
pursuant to clause (vi) of this Section 7.4(b) shall
be deemed not to be a breach of any representation or warranty in any Loan
Document (other than this Agreement), so long as EnergySolutions complies with the
notification and documentation requirements in such clause (v).  Notwithstanding anything to the contrary
contained above, Parent must at all times directly or indirectly own 100% of
the Equity Interests of each of EnergySolutions and Duratek.


 


Section 7.5             Limitation on Guaranties.


 


Except as
permitted under Section 7.1, EnergySolutions
and Parent each shall not, and shall cause each of their respective
Subsidiaries not to, at any time Guaranty, assume or be obligated with respect
to, or permit to be outstanding any Guaranty of, any obligation of any other
Person other than (a) a Guaranty by endorsement of negotiable instruments
for collection in the ordinary course of business, or (b) obligations
under agreements of EnergySolutions or any of the Subsidiaries entered into in
connection with providing or the acquisition of services, supplies and
equipment in the ordinary course of the Permitted Business of EnergySolutions
or any of the Subsidiaries, (c)  any Guaranty pursuant to the Zion
Agreements; (d) any Guaranty by EnergySolutions or Parent of the payment
or performance of a Special Purpose Subsidiary (or such Special Purpose
Subsidiary’s respective Subsidiaries) other than ZionSolutions, including any
guarantee bond; provided that each such Guaranty shall not exceed
$50,000,000 per Special Purpose Subsidiary; provided further that the
aggregate amount of all such Guaranties shall not exceed $150,000,000; and (e) as
may be contained in any Loan Document including, without limitation, the
Guaranty and the Subsidiary Guaranty.


 


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Section 7.6             Investments and Acquisitions.


 


EnergySolutions
and Parent shall not, and shall cause each Subsidiary not to, make any Investment
in any Person, or make any Acquisition, or any acquisition of any interest in
real property, except that EnergySolutions may enter into the Secured Hedge
Agreements, and that, so long as no Default exists before and after giving
effect thereto:


 


(a)           Cash Equivalents.  EnergySolutions and each Subsidiary may,
directly or through a brokerage account, purchase (i) marketable direct
obligations of the United States of America, its agencies and instrumentalities
maturing within one year from the date of acquisition thereof, (ii) marketable
direct obligations issued by any state of the United States or any political
subdivision of any such state or any public instrumentality thereof maturing
within one year from the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from either
S&P or Moody’s, (iii) dollar denominated time deposits, certificates
of deposit and bankers’ acceptances of any Lender or any commercial bank
having, or which is the principal banking subsidiary of a bank holding company
having, a long-term unsecured debt rating of at least “A” or the equivalent
thereof from S&P or “A2” or the equivalent thereof from Moody’s with
maturities of not more than one year from the date of acquisition by such
Person, (iv) repurchase obligations with a term of not more than seven
days for underlying securities of the type described in clauses (i) and (ii) above
entered into with any bank meeting the qualifications specified in clause (iii) above,
(v) commercial paper issued by any Person incorporated in the United
States rated at least A-1 or the equivalent thereof by S&P or at least P-1
or the equivalent thereof by Moody’s and in each case maturing not more than
one year after the date of acquisition by such Person, and (vi) investments
in money market funds substantially all of whose assets are comprised of
securities of the types described in clauses (i) through (v) above
(collectively, “Cash Equivalents”).


 


(b)           Acquisitions.  Subject to compliance with Section 7.6(d), EnergySolutions and the Subsidiaries
may make Permitted Acquisitions and Real Property Acquisitions.


 


(c)           Investments.  Subject to compliance with Section 7.6(d), EnergySolutions and the Subsidiaries
may make the following Investments (collectively “Permitted Investments”):


 


(i)            EnergySolutions and
the Subsidiaries may acquire and hold accounts receivable owing to any of them,
if created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms of EnergySolutions or
such Subsidiary;


 


(ii)           EnergySolutions and its
Consolidated Subsidiaries and each Consolidated Subsidiary of Parent may
acquire and own Investments (including debt obligations) received in connection
with the bankruptcy or reorganization of their suppliers and customers or in
good faith settlement of delinquent obligations of, and other disputes with,
their customers and suppliers arising in the ordinary course of business;


 


(iii)          EnergySolutions and its
Consolidated Subsidiaries and each Consolidated Subsidiary of Parent may make
Investments consisting of loans and advances to officers and employees for
moving, relocation and travel expenses and other similar expenditures, in each
case in the ordinary course of business and in an aggregate amount not to
exceed $1,000,000 at any time outstanding (determined without regard to any
write-downs or write-offs of such loans and advances);


 


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(iv)          EnergySolutions and its
Consolidated Subsidiaries and each Consolidated Subsidiary of Parent may enter
into Secured Hedge Agreements;


 


(v)           the Loan Parties may
make intercompany loans and advances between and among one another
(collectively, the “Intercompany Loans”), provided that (A) such
Intercompany Loan made shall be evidenced by an intercompany promissory note,
which note shall be pledged to the Collateral Agent pursuant to, and to the
extent required by, the Pledge Agreement, and (B) each obligor and obligee
in respect of each such Intercompany Loan shall have executed and delivered to
the Collateral Agent a counterpart of a Subordination Agreement;


 


(vi)          Parent, EnergySolutions
and their respective Subsidiaries may make Investments in their respective
Subsidiaries that are Subsidiary Guarantors;


 


(vii)         a Subsidiary that is not
a Subsidiary Guarantor may make Investments in another Subsidiary that is not a
Subsidiary Guarantor;


 


(viii)        EnergySolutions and the
Subsidiaries may acquire and hold promissory notes and other non-cash
consideration issued by the purchaser of assets in connection with a sale of
such assets to the extent permitted by the definition of “Permitted Asset Sale”;


 


(ix)           Investments outstanding
on the Third Amended and Restated Credit Agreement Effective Date and set forth
on Schedule 17;


 


(x)            other Investments in any
Subsidiary that is not a Subsidiary Guarantor and joint ventures not to exceed
$50,000,000 at any time outstanding; provided that any Investment in the
form of a loan or advance shall be evidenced by a note and, in the case of a
loan or advance by a Loan Party, pledged by such Loan Party as Collateral
pursuant to the Security Documents;


 


(xi)           Investments in
ZionSolutions pursuant to the Zion Agreements; and


 


(xii)          Investments in Special
Purpose Subsidiaries other than ZionSolutions not to exceed $10,000,000 per
Special Purpose Subsidiary.


 


(d)           Conditions to
Permitted Acquisitions, Real Property Acquisitions and Permitted Investments.  No Permitted Acquisition, Real Property
Acquisition or Permitted Investment permitted under Section 7.6(b) or
(c) hereof may be consummated
unless:


 


(i)            (A) EnergySolutions
and Parent shall be in pro forma compliance with the financial covenants set
forth in Section 7.7 before and after
giving effect to such Permitted Acquisition, Real Property Acquisition or
Permitted Investment, as the case may be, (B) no Default shall have
occurred and be continuing (or would occur after giving effect thereto) and (C) such
Permitted Acquisition, Real Property Acquisition or Permitted Investment shall
not be reasonably expected to have a Material Adverse Change;


 


(ii)           With respect to any
Permitted Acquisition, Real Property Acquisition or Permitted Investment of
more than $20,000,000, EnergySolutions shall provide the Administrative Agent
and the Lenders with notice thereof, not less than ten (10) days prior to
the proposed closing thereof, and with copies of all material information
pertaining to 


 


94

















 


such Permitted Acquisition, Real Property
Acquisition or Permitted Investment, as the case may be, and a certificate
signed by the chief financial officer of EnergySolutions, certifying pro forma
compliance with the covenants listed in clause (i) of this Section 7.6(d), together with any calculations
necessary to demonstrate such compliance; and


 


(iii)          Sections
5.10, 5.13 and 6.4(c) of
this Agreement have been complied with.


 


Section 7.7             Financial Covenants.


 


Parent and its
Subsidiaries shall not:


 


(a)           Leverage Ratio.  Permit the Leverage Ratio to exceed the
ratios for the respective periods ended on the dates set forth below:


 


	
  Four Fiscal Quarters Ended

  	
   

  	
  Maximum Ratio

  	
   

  
	
  March 31, 2007 – September 30, 2007

  	
   

  	
  5.25

  	
   

  
	
  December 31, 2007

  	
   

  	
  5.00

  	
   

  
	
  March 31, 2008 – September 30, 2008

  	
   

  	
  4.75

  	
   

  
	
  December 31, 2008

  	
   

  	
  4.50

  	
   

  
	
  March 31, 2009 – June 30, 2009

  	
   

  	
  4.25

  	
   

  
	
  September 30, 2009

  	
   

  	
  4.00

  	
   

  
	
  December 31, 2009

  	
   

  	
  3.75

  	
   

  
	
  March 31 , 2010 – thereafter

  	
   

  	
  3.50

  	
   

  



 


(b)           First Lien Leverage
Ratio.  Permit the First Lien
Leverage Ratio to exceed the ratios for the respective periods ended on the
dates set forth below:


 


	
  Four Fiscal Quarters Ended

  	
   

  	
  Maximum Ratio

  	
   

  
	
  March 31, 2007 – September 30, 2007

  	
   

  	
  4.75

  	
   

  
	
  December 31, 2007

  	
   

  	
  4.50

  	
   

  
	
  March 31, 2008 – September 30, 2008

  	
   

  	
  4.25

  	
   

  
	
  December 31, 2008

  	
   

  	
  4.00

  	
   

  
	
  March 31, 2009 – June 30, 2009

  	
   

  	
  3.75

  	
   

  
	
  September 30, 2009

  	
   

  	
  3.50

  	
   

  
	
  December 31, 2009

  	
   

  	
  3.25

  	
   

  
	
  March 31 , 2010 – thereafter

  	
   

  	
  3.00

  	
   

  



 


(c)           Interest Coverage
Ratio.  Permit the Interest Coverage
Ratio to be less than the ratios for the respective periods ended on the dates
set forth below:


 


	
  Four Fiscal Quarters Ended

  	
   

  	
  Minimum Ratio

  	
   

  
	
  March 31, 2007 – December 31, 2007

  	
   

  	
  2.00

  	
   

  
	
  March 31, 2008

  	
   

  	
  2.25

  	
   

  



 


95

















 


	
  Four Fiscal Quarters Ended

  	
   

  	
  Minimum Ratio

  	
   

  
	
  June 30, 2008 – March 31, 2009

  	
   

  	
  2.50

  	
   

  
	
  June 30, 2009 – December 31, 2009

  	
   

  	
  2.75

  	
   

  
	
  March 31, 2010 – thereafter

  	
   

  	
  3.00

  	
   

  



 


Notwithstanding
the foregoing, at all times after the Duratek Payoff, for the purpose of
calculating the Leverage Ratio pursuant to Section 7.7(a),
the First Lien Leverage Ratio pursuant to Section 7.7(b) and
the Interest Coverage Ratio pursuant to this Section 7.7(c),
Operating Cash Flow shall exclude (x) the net income of Duratek and its
Subsidiaries on a consolidated basis determined in accordance with GAAP and (y) any
items that would be added to the net income of Duratek and its Subsidiaries in
the calculation of the operating cash flow of Duratek and its Subsidiaries
(calculated in the same manner, and with the same adjustments, as “Operating
Cash Flow” of EnergySolutions and its Subsidiaries); provided that “Duratek
and its Subsidiaries” shall not include EnergySolutions and its Subsidiaries if
EnergySolutions is a Subsidiary of Duratek.


 


(d)           Maximum Capital
Expenditures.  Permit the aggregate
Capital Expenditures of EnergySolutions and the Subsidiaries on a consolidated
basis to be greater than the amounts for the respective fiscal years set forth
below:


 


	
  Fiscal Year

  	
   

  	
  Maximum Capital Expenditures

  	
   

  
	
  2006

  	
   

  	
  $

  	
  40.0 million

  	
   

  
	
  2007 and thereafter

  	
   

  	
  $

  	
  30.0 million

  	
   

  



 


However, to the extent the aggregate Capital
Expenditures of EnergySolutions and the Subsidiaries on a consolidated basis in
any one fiscal year (ending on or after December 31, 2005) are less than
the maximum amount permitted pursuant to this Section 7.7(d),
then EnergySolutions and its Subsidiaries on a consolidated basis may expend an
additional amount on Capital Expenditures in a subsequent fiscal year equal to
the dollar amount of the lesser of the shortfall from such fiscal year and 50%
of the amount permitted for Capital Expenditures in the prior fiscal year;
however, in no circumstance may any shortfall be carried forward from more than
one fiscal year at any time.


 


Section 7.8             Affiliate Transactions and Restricted
Payments.


 


(a)           Except as specifically
provided herein (including, without limitation, Section 7.7
and Section 7.8(b) hereof),
EnergySolutions and Parent each shall not, and shall cause each of their respective
Subsidiaries not to, at any time enter into any transaction or series of
related transactions with any Affiliate of EnergySolutions or any of the
Subsidiaries, other than (i)(A) in the ordinary course of business or (B) in
an amount less than $250,000 per year in the aggregate for all such
transactions and (ii) in each case, on terms that are no less favorable to
EnergySolutions or such Subsidiary, as the case may be, than those that would
reasonably be obtained by EnergySolutions or such Subsidiary at that time in a
comparable arm’s-length transaction with a Person other than an Affiliate,
except (a) as described on Schedule 10 attached hereto, (b) reasonable
and customary fees paid to non-officer members of the board of directors (or
similar governing body) of EnergySolutions and the Subsidiaries and (c) after
the consummation of the initial public offering of the shares of common stock
of Parent, to the holders of Equity Interests of EnergySolutions and Parent, (i) annualized
prorated dividends of up to $10,000,000 for the fiscal year 


 


96

















 


ending December 31,
2007, (ii) dividends of up to $10,000,000 for the fiscal year ending December 31,
2008, and (iii) dividends up to the greater of (A) $10,000,000 and (B) 15%
of Adjusted Net Income, for each consecutive four fiscal quarter period
thereafter, provided that for the 2009 fiscal year and each fiscal year
thereafter, the amount of dividends paid in any consecutive four fiscal quarter
period shall not exceed  the lesser of (x) the
amount referred to in clause (iii) above or (y) 15% of the Available
Adjusted Net Income as of the end of such period.


 


(b)           The Loan Parties will
not, and will not permit any Subsidiary to, directly or indirectly, declare or
make, or agree to pay or make, directly or indirectly, any Restricted Payment,
or incur any obligation (contingent or otherwise) to do so, other than
Permitted Restricted Payments.


 


Section 7.9             Real Estate.


 


None of
Parent, EnergySolutions or any of their respective Subsidiaries shall purchase
any single parcel of real estate other than any purchase that constitutes a
Real Property Acquisition.


 


Section 7.10           ERISA Liabilities.


 


EnergySolutions
and Parent shall not, and shall cause each of its Subsidiaries not to, permit
the assets of any of their respective Plans to be less than the accumulated
benefit obligations of all such Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) by an
amount that could reasonably be expected to have a Material Adverse Change if
the Plans were terminated.


 


Section 7.11           Limitation on Preferred Stock.


 


EnergySolutions
and Parent each shall not permit any of their respective Subsidiaries (other
than a Special Purpose Subsidiary) to create or issue any preferred capital
stock, limited partnership interest, general partnership interest, or other
securities or other equity or ownership interest except for (a) preferred
capital stock, limited partnership interests, general partnership interests,
and other securities and other equity and ownership interests outstanding on
the Third Amended and Restated Credit Agreement Effective Date or (b) preferred
capital stock, limited partnership interests, general partnership interests, or
other securities or other equity or ownership interests issued to and held by
EnergySolutions, Parent or any other Subsidiary.


 


Section 7.12           Negative Pledge.


 


(a)           EnergySolutions and
Parent each shall not, and shall cause each of their respective Subsidiaries
(other than a Special Purpose Subsidiary) not to, enter into after the Third
Amended and Restated Credit Agreement Effective Date or permit to exist after
the Third Amended and Restated Credit Agreement Effective Date any new
agreement (other than this Agreement, any Duratek Loan Documents or any other
Loan Document) that limits or conditions the ability of EnergySolutions or
Parent or any of their respective Subsidiaries to create, incur, assume or
suffer to exist Liens on property of such Person except that this Section 7.12(a) shall not prohibit (a) any
negative pledge incurred or provided in connection with any Lien referred to in
clause (e) of the definition of “Permitted Lien” in Article 1
solely to the extent any such negative pledge relates to the property secured
by or the subject of such Lien, (b) any restrictions on any Subsidiary of
EnergySolutions or Parent under any agreement in effect at the time such
Subsidiary becomes a Subsidiary of EnergySolutions or Parent, so long as such
agreement was not entered into in contemplation of such Person becoming a
Subsidiary or a Subsidiary of Parent, (c) any 


 


97

















 


agreements governing
any purchase money Liens or Capital Lease Obligations otherwise permitted
hereby (in which case, any prohibition or limitation shall only be effective
against the assets financed thereby), (d) Additional Permitted Debt, (e) customary
restrictions on assignment of contracts (other than assignments in favor of the
Collateral Agent for the benefit of the Secured Parties) contained within such
agreements, (f) customary restrictions with respect to an asset imposed
pursuant to an agreement for the disposition of such asset (so long as such
disposition is permitted by Section 7.6
hereof and which agreement is not proscribed by a provision hereof other than
those contained in this Section 7.12(a)),
(g) customary restrictions in joint venture agreements of joint ventures
that are not Subsidiaries and (h) this Agreement or the Duratek Amendment.


 


(b)           To the extent any
Special Purpose Subsidiary is restricted or prohibited by the United States
Nuclear Regulatory Commission or any other federal or state governmental
entity, or by a counterparty to such Special Purpose Subsidiary’s SPS Project
Documentation, from granting Liens on such Special Purpose Subsidiary’s assets
for the benefit of the Lenders, then such Special Purpose Subsidiary shall not,
and shall cause each of its respective Subsidiaries not to, create, incur,
assume or suffer to exist Liens, other than Permitted Liens, on the property of
such Special Purpose Subsidiary for the benefit of any Person that is not a
counterparty to such Special Purpose Subsidiary’s SPS Project Documentation.


 


Section 7.13           Payment Restrictions Affecting
Subsidiaries.


 


EnergySolutions
or Parent shall not, directly or indirectly, enter into after the Third Amended
and Restated Credit Agreement Effective Date or suffer to exist after the Third
Amended and Restated Credit Agreement Effective Date, or permit any Subsidiary
(other than a Special Purpose Subsidiary) to enter into after the Third Amended
and Restated Credit Agreement Effective Date or suffer to exist after the Third
Amended and Restated Credit Agreement Effective Date, any new agreement or
arrangement limiting the ability of any of such Subsidiaries to declare or pay
dividends or other distributions in respect of its equity interests or repay or
prepay any Indebtedness owed to, make loans or advances to, or otherwise
transfer assets to or invest in, EnergySolutions or any Subsidiary (whether
through a covenant restricting dividends, loans, asset transfers or
investments, a financial covenant or otherwise), except (a) the Loan
Documents, (b) any agreement in effect at the time a Subsidiary becomes a
Subsidiary, so long as such agreement was not entered into in contemplation of
such Person becoming a Subsidiary, (c) restrictions on the transfer of any
asset subject to a Lien permitted by Section 7.2,
(d) Additional Permitted Debt, (e) customary provisions restricting
subletting or assignment of any lease governing any leasehold interest of
EnergySolutions or any of the Subsidiaries (other than in favor of the
Collateral Agent for the benefit of the Secured Parties), (f) customary
provisions restricting assignment (other than in favor of the Collateral Agent
for the benefit of the Secured Parties) of any licensing agreement (in which
EnergySolutions or any of the Subsidiaries is the licensee) or other contract
entered into by EnergySolutions or any of the Subsidiaries in the ordinary
course of business, and (g) restrictions on the transfer (other than in
favor of the Collateral Agent for the benefit of the Secured Parties) of any
asset subject to a Lien permitted by Section 7.2.


 


Section 7.14           Speculative Transactions.


 


EnergySolutions
and Parent shall not, and shall cause each of their respective Subsidiaries
(other than a Special Purpose Subsidiary) not to, enter into any derivatives
transaction other than a Hedge Agreement or a currency swap transaction
involving the exchange of U.S. dollars to U.K. pounds, entered into pursuant to
the U.K. Acquisition, on terms reasonably acceptable to the Administrative
Agent.


 


98

















 


Section 7.15           Name, Jurisdiction of Organization and
Business.


 


Other that as
permitted pursuant to Section 7.4,
no Loan Party shall change its name or its jurisdiction of incorporation
without (i) 10 Business Days’ notice to the Administrative Agent and (ii) taking
all actions reasonably satisfactory to the Collateral Agent that are necessary
to maintain the perfection and priority of the security interest of the
Collateral Agent for the benefit of the Secured Parties in the Collateral, if
applicable, nor shall EnergySolutions or any of the Subsidiaries enter into or
conduct any business other than a Permitted Business.


 


Section 7.16           [Reserved].


 


Section 7.17           Permitted Activities of Holdings and
Parent.


 


Parent shall
not (a) incur, directly or indirectly, any Indebtedness (other than
Indebtedness permitted by Section 7.1);
(b) create or suffer to exist any Lien upon any property or assets now
owned or hereafter acquired by it other than the Liens created under the
Security Documents or permitted pursuant to Section 7.2;
(c) engage in any business or activity or own any assets other than (i) the
equity interests of EnergySolutions and Duratek or a holding company that is a
Loan Party and that owns, directly or indirectly, the Equity Interests of
EnergySolutions and Duratek, (ii) performing its obligations and
activities incidental thereto under the Loan Documents and (iii) making
Restricted Payments and Investments to the extent permitted by this Agreement; (d) consolidate
with or merge with or into, or convey, transfer or lease all or substantially
all its assets to, any Person; (e) sell or otherwise dispose of any Equity
Interests of EnergySolutions or Duratek; (f) create or acquire any
Subsidiary or make or own any Investment in any Person other than
EnergySolutions or Duratek; or (g) fail to hold itself out to the public
as a legal entity separate and distinct from all other Persons.


 


ARTICLE 8.


 


Default


 


Section 8.1             Events of Default.


 


Each of the
following events shall constitute an Event of Default, whatever the reason for
such event and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment or order of any court or any
order, rule or regulation of any governmental or non-governmental body:


 


(a)           Any representation or
warranty made under this Agreement or any other Loan Document shall prove to be
incorrect or misleading in any material respect when made, or when deemed to be
made pursuant to Section 4.2 hereof;


 


(b)           EnergySolutions (i) shall
default in the payment of any principal amount of the Loans, or (ii) shall
default in the payment of any interest, fees or other amounts payable to the
Lender Parties, the Administrative Agent or any of them, when due, and such
Default, in the case of this clause (ii), shall not be cured by payment in full
within three (3) Business Days;


 


(c)           EnergySolutions and
Parent or any of their respective Subsidiaries shall default in the performance
or observance of any agreement or covenant contained in Article 7
hereof;


 


99

















 


(d)           EnergySolutions and
Parent or any of their respective Subsidiaries shall default in the performance
or observance of any other agreement or covenant contained in this Agreement
not specifically referred to elsewhere in this Section 8.1,
and such default shall not be cured within a period of thirty (30) days after
the earlier of the date that (i) any officer or manager of EnergySolutions
becomes aware of such default or (ii) notice of such default to
EnergySolutions from the Administrative Agent or any Lender becomes effective
in accordance with Section 11.1
hereof;


 


(e)           There shall occur any
default in the performance or observance of any agreement or covenant or breach
of any representation or warranty contained in any of the Loan Documents (other
than this Agreement or as otherwise provided in this Section 8.1)
by EnergySolutions, any of the Subsidiaries or any other obligor thereunder,
which shall not be cured within a period of thirty (30) days after the earlier
of the date that (i) any officer or manager of EnergySolutions becomes
aware of such default or (ii) notice of such default to EnergySolutions
from the Administrative Agent or any Lender becomes effective in accordance
with Section 11.1 hereof;


 


(f)            There shall be entered
and remain unstayed a decree or order for relief in respect of Parent and
EnergySolutions or any of their respective Subsidiaries under Title 11 of the
United States Code, as now constituted or hereafter amended, or any other
applicable federal or state bankruptcy law or other similar law, or appointing
a receiver, liquidator, assignee, trustee, custodian, sequestrator or similar
official of Parent and EnergySolutions or any of their respective Subsidiaries,
or of any substantial part of their respective properties, or ordering the
winding-up or liquidation of the affairs of Parent and EnergySolutions or any
of their respective Subsidiaries; or an involuntary petition shall be filed or
case commenced against Parent and EnergySolutions or any of their respective
Subsidiaries and a temporary stay entered, and (i) such petition and stay
shall not be diligently contested, or (ii) such petition and stay shall
continue undismissed for a period of forty-five (45) consecutive days;


 


(g)           Parent and
EnergySolutions or any of their respective Subsidiaries shall file a petition,
answer or consent seeking relief under Title 11 of the United States Code, as
now constituted or hereafter amended, or any other applicable federal or state
bankruptcy law or other similar law, or Parent and EnergySolutions or any of
their respective Subsidiaries shall consent to the institution of proceedings
thereunder or to the filing of any such petition or shall seek or consent to
the appointment or taking of possession of a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of Parent and
EnergySolutions or any of their respective Subsidiaries, or of any substantial
part of their respective properties, or Parent and EnergySolutions or any their
respective Subsidiaries shall fail generally to pay its debts as they become
due, or Parent and EnergySolutions or any of their respective Subsidiaries
shall take any action in furtherance of any such action;


 


(h)           A judgment shall be
entered by any court against Parent and EnergySolutions or any of the
Subsidiaries for the payment of money which, singly or in the aggregate with
other such judgments (to the extent the amount of such judgment exceeds the
amount of insurance coverage therefor, net of any deductible or co-payment, and
as to which the related carrier has been notified of such judgment and has
responded in writing and not denied insurance coverage therefor, including
without limitation the amount of such coverage), exceeds $10,000,000 or a
warrant of attachment or execution or similar process shall be issued or levied
against property of Parent and EnergySolutions or any of the Subsidiaries
which, together with all other such property of Parent and EnergySolutions or
any of the Subsidiaries subject to other such process, exceeds in value
$10,000,000 in the aggregate, and within sixty (60) days after the entry, issue
or levy 


 


100

















 


thereof, such
judgment, warrant or process shall not have been paid or discharged or stayed
pending appeal, or after the expiration of any such stay, such judgment,
warrant or process shall not have been paid, discharged or reduced to an amount
less than $5,000,000;


 


(i)            (A) There shall
be at any time any “accumulated funding deficiency,” as defined in Section 302
of ERISA or in Section 412 of the Code, with respect to any Plan or any
ERISA Affiliate Plan; (B) a trustee shall be appointed by a United States
District Court to administer any such Plan or ERISA Affiliate Plan; (C) the
filing pursuant to Section 412(d) of the Code or Section 303 of
ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan or ERISA Affiliate Plan; (D) the PBGC or a plan
administrator shall institute proceedings to terminate any Plan or ERISA
Affiliate Plan; or EnergySolutions, Parent or any of the Subsidiaries shall
incur any liability under Title IV of ERISA in connection with the termination
of any Plan or an ERISA Affiliate Plan (other than liabilities for benefit
obligations that are sufficiently funded at the time of termination in
accordance with applicable provisions of Title IV of ERISA); (E) any Plan,
or trust created under any such Plan, shall engage in a “prohibited transaction”
(as such term is defined in Section 406 of ERISA or Section 4975 of
the Code) which would subject EnergySolutions or any of the Subsidiaries to a
tax or penalty in any amount on “prohibited transactions” imposed by Section 502
of ERISA or Section 4975 of the Code or an obligation to indemnify any
other person for such tax or penalty; or (F) the incurrence by EnergySolutions,
Parent or any of the Subsidiaries of any liability with respect to a withdrawal
or partial withdrawal from any Multiemployer Plan or the receipt by
EnergySolutions or any Subsidiary of any notice, or the receipt by any
Multiemployer Plan from EnergySolutions or any Subsidiary of any notice,
concerning the imposition on EnergySolutions or any Subsidiary of withdrawal liability
as defined under Title IV of ERISA or a determination that a Multiemployer Plan
is, or is expected to be, insolvent or in reorganization with the meaning of
Title IV of ERISA, and, in each case, such event or condition, together with
other such events or conditions, if any, would reasonably be expected to
subject EnergySolutions and the Subsidiaries to any tax, liability or penalty
in excess of $5,000,000;


 


(j)            There shall occur (i) any
default under any Indebtedness (other than the Loans) of Parent and
EnergySolutions or any of the Subsidiaries in an aggregate principal amount exceeding
$5,000,000 at maturity and which default shall continue unremedied for any
applicable period of time sufficient to allow the holder of such Indebtedness
to accelerate the maturity of such Indebtedness; (ii) any default under
any Hedge Agreement having a notional principal amount of $5,000,000 or more;
or (iii) unless otherwise permitted herein, any defeasance or any other
action the result of which is to defease or repay any other subordinated
Indebtedness of EnergySolutions without payment in full of the Obligations;


 


(k)           One or more of the
Necessary Authorizations shall be terminated or revoked such that
EnergySolutions and the Subsidiaries are no longer able to operate their
businesses or any portion thereof or any of such Necessary Authorizations shall
fail to be renewed at the stated expiration thereof such that EnergySolutions
and the Subsidiaries are no longer able to operate their businesses or any
portion thereof and retain the revenue received therefrom, except in the event
that the termination or revocation could not reasonably be expected to have a
Material Adverse Change;


 


(l)            Any Security Document
or any Note or any other Loan Document or any material provision thereof shall
at any time and for any reason be declared by a court of competent jurisdiction
to be null and void, or a proceeding shall be commenced by EnergySolutions and
Parent or any of their respective Subsidiaries or by any governmental authority
having jurisdiction 


 


101

















 


over any of
them seeking to establish the invalidity or unenforceability thereof (exclusive
of questions of interpretation of any provision thereof), or EnergySolutions
and Parent or any of their respective Subsidiaries shall deny that it has any
liability or obligation for the payment of principal or interest or other
obligations purported to be created under any Loan Document;


 


(m)          Any Security Document
shall for any reason fail or cease to create a valid and first priority Lien on
or Security Interest in any material portion of the Collateral purported to be
covered thereby, subject to any Permitted Lien, or any such Lien or Security
Interest shall cease to be perfected, except if such failure results from the
Collateral Agent’s failure to file any UCC-l financing statement or UCC-3
continuation statement in the appropriate jurisdiction or to maintain
possession or control of such portion of the Collateral as a result of a sale
or assignment of such Collateral by the Collateral Agent; or


 


(n)           There shall occur a
Change of Control.


 


Section 8.2             Remedies.


 


(a)           If an Event of Default
specified in Section 8.1 (other than an
Event of Default under Section 8.1(f) or
Section 8.1(g)) shall have
occurred and shall be continuing, the Administrative Agent, at the request of
the Majority Lenders, may formally declare that an Event of Default has
occurred and, at the request of the Majority Lenders, may (i) terminate
all or any portion of the Commitments of each Lender Party and the obligation
of each Lender Party to make Loans (other than in respect of purchases of participations
in Letter of Credit Loans by the Revolving Issuing Bank or a Revolving Lender
pursuant to Section 2.2(f)(ii)) and of
the Issuing Banks to issue Letters of Credit and (ii) declare the principal
of and interest on the Loans and any Notes and all other amounts owed to the
Lender Parties and the Administrative Agent under this Agreement and any Notes
and any other Obligations to be forthwith due and payable without presentment,
demand, protest or notice of any kind, all of which are hereby expressly
waived, anything in this Agreement or in the Notes or any other Loan Document
to the contrary notwithstanding, and the Commitments shall thereupon forthwith
terminate and all such amounts shall be immediately due and payable.


 


(b)           Upon the occurrence and
continuance of an Event of Default specified in Section 8.1(f) or
Section 8.1(g), all principal,
interest and other amounts due hereunder and under any Notes, and all other
Obligations, shall thereupon and concurrently therewith become due and payable,
the Commitments of each Lender Party and the obligation of each Lender Party to
make Loans (other than in respect of Letter of Credit Loans by the Revolving
Issuing Bank or a Revolving Lender pursuant to Section 2.2(f)(ii))
and of the Issuing Banks to issue Letters of Credit shall forthwith terminate
and the principal amount of the Loans outstanding hereunder shall bear interest
at the Default Rate, all without any action by the Administrative Agent, the
Lender Parties or the Majority Lenders or any of them and without presentment,
demand, protest or other notice of any kind, all of which are expressly waived,
anything in this Agreement or in the other Loan Documents to the contrary
notwithstanding.


 


(c)           Upon acceleration of
the Obligations, as provided in Section 8.2(a) or
(b), the Administrative Agent and the
Lender Parties shall have all of the post-default rights granted to them, or
any of them, under the Loan Documents and under Applicable Law.


 


(d)           Upon acceleration of
the Obligations, as provided in Section 8.2(a) or
(b), the Administrative Agent, upon
request of the Majority Lenders, shall have the right to the appointment of a
receiver for the properties and assets of EnergySolutions and the Subsidiaries,
both to operate and to sell such properties and assets, and EnergySolutions,
for itself and on behalf of the Subsidiaries, hereby consents to such right and
such appointment and hereby waives any objection EnergySolutions or any
Subsidiary 


 


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may have
thereto or the right to have a bond or other security posted by the Collateral
Agent on behalf of the Secured Parties, in connection therewith.


 


(e)           The rights and remedies
of the Administrative Agent, the Collateral Agent and the Lender Parties
hereunder shall be cumulative and not exclusive.


 


Section 8.3             Payments Subsequent to Declaration of
Event of Default.


 


Subsequent to
the acceleration of the Loans under Section 8.2
hereof, payments and prepayments under this Agreement made to any of the
Administrative Agent, the Collateral Agent or the Lender Parties or otherwise
received by any of such Persons (from realization on Collateral for the Secured
Obligations or otherwise) shall be paid over to the Administrative Agent (if
necessary) and distributed by the Administrative Agent as follows:  first, to reimburse the reasonable costs and
expenses, if any, incurred in connection with the collection of such payment or
prepayment including, without limitation, any reasonable costs incurred by any
of them in connection with the sale or disposition of any Collateral for the
Secured Obligations; second, to make distributions in accordance with Section 2.10(c); and third, upon satisfaction in full
of all Secured Obligations, to EnergySolutions or as otherwise required by law.


 


Section 8.4             Actions in Respect of the Letters of
Credit upon Default.


 


If any Event
of Default shall have occurred and be continuing, the Administrative Agent may,
or shall at the request of the Majority Lenders, irrespective of whether it is
taking any of the actions described in Section 8.2
or otherwise, make demand upon EnergySolutions to, and forthwith upon such
demand EnergySolutions will, pay to the Administrative Agent on behalf of the
Lender Parties in same day funds at the Administrative Agent’s office
designated in such demand, for deposit in the L/C Collateral Account, an amount
equal to the aggregate Available Amount of all Zion Letters of Credit and Revolving
Letters of Credit then outstanding.  If
at any time the Administrative Agent determines that any funds held in the L/C
Collateral Account are subject to any right or claim of any Person other than
the Agents and the Lender Parties or that the total amount of such funds is
less than the aggregate Available Amount of all Revolving Letters of Credit,
EnergySolutions will, forthwith upon demand by the Administrative Agent, pay to
the Administrative Agent, as additional funds to be deposited and held in the
L/C Collateral Account, an amount equal to the excess of (a) such
aggregate Available Amount over (b) the total amount of funds, if any,
then held in the L/C Collateral Account that the Administrative Agent determines
to be free and clear of any such right and claim.  Upon the drawing of any Zion Letter of Credit
and Revolving Letter of Credit for which funds are on deposit in the L/C Collateral
Account, such funds shall be applied to reimburse the Zion Issuing Bank or Zion
Lenders or Revolving Issuing Bank or Revolving Lenders, as applicable, to the
extent permitted by Applicable Law.


 


Section 8.5             Certain Cure Rights.


 


(a)           Financial Condition
Covenants.  Notwithstanding anything to
the contrary contained in Section 8.1,
in the event that Parent fails to comply with the requirements of any covenants
set forth in Section 7.7(a) or (b) (each, a “Financial Condition Covenant”),
until the expiration of the 20th day subsequent to the date the certificate
calculating such Financial Condition Covenant is required to be delivered
pursuant to Section 6.3, Parent shall
have the right to issue equity interests to the Equity Sponsors for cash, and,
in each case, to contribute any such cash to the capital of EnergySolutions (collectively,
the “Cure Right”), and upon the receipt by EnergySolutions of such cash
(the “Cure Amount”) pursuant to 


 


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the exercise
by Parent of such Cure Right such Financial Condition Covenant shall be recalculated
giving effect to the following pro forma adjustments:


 


(i)      Operating Cash Flow shall be
increased, solely for the purpose of measuring the Financial Condition
Covenants and not for any other purpose under this Agreement, by an amount
equal to the Cure Amount; and


 


(ii)     If, after giving effect to
the foregoing recalculations, Parent and EnergySolutions shall then be in
compliance with the requirements of all Financial Condition Covenants, Parent
and EnergySolutions shall be deemed to have satisfied the requirements of the
Financial Condition Covenants as of the relevant date of determination with the
same effect as though there had been no failure to comply therewith at such
date, and the applicable breach or default of the Financial Condition Covenants
which had occurred shall be deemed cured for all purposes of this Agreement.


 


(b)           Limitations on
Exercise of Cure Right, etc. 
Notwithstanding anything herein to the contrary, (a) in no event
shall Parent be entitled to exercise the Cure Right in more than two
consecutive fiscal quarters and (b) each Cure Amount shall not exceed the
amount required to cure the applicable failure to comply with a Financial
Condition Covenant.  To the extent a
fiscal quarter ended for which the Financial Condition Covenants are initially
recalculated as a result of a Cure Right is included in the calculation of a
Financial Condition Covenant in a subsequent fiscal period, the Cure Amount
shall be included in the amount of Operating Cash Flow for such initial fiscal
period.


 


ARTICLE 9.


 


The Agents


 


Section 9.1             Appointment and Authorization.


 


Each Lender
(in its capacities as a Lender and an Issuing Bank (if applicable)) hereby
consents to the assignment by Calyon of all of its rights and duties as the
Administrative Agent and Collateral Agent to CNAI pursuant to the Successor
Agent Agreement and hereby irrevocably appoints and authorizes, and hereby
agrees that it will require any transferee of any of its interest in its Loans
irrevocably to appoint and authorize, CNAI as the Administrative Agent and the
Collateral Agent, as applicable, to take such actions as agents on its behalf
and to exercise such powers hereunder, under the Security Documents as are
delegated by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto. 
Notwithstanding anything in the Loan Documents to the contrary, neither
Calyon (as administrative and collateral agent under the Original Credit
Agreement), the Administrative Agent, the Collateral Agent nor any of their respective
directors, officers, employees or agents shall be liable for any action taken
or omitted to be taken by it or them hereunder or in connection herewith (or,
with respect to Calyon, the Original Credit Agreement), except for its or their
own gross negligence or willful misconduct.


 


Section 9.2             Interest Holders.


 


The
Administrative Agent may treat each Lender Party, or the Person designated in
the last notice filed with the Administrative Agent, whether under Section 11.1, Section 11.5
or otherwise hereunder, as the holder of all of the interests of such Lender
Party in its Loans or Commitments until written notice of transfer, signed by
such Lender Party (or the Person designated in the last notice filed with the
Administrative Agent)


 


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and by the
Person designated in such written notice of transfer, in form and substance
satisfactory to the Administrative Agent, shall have been filed with the Administrative
Agent.


 


Section 9.3             Consultation with Counsel.


 


The
Administrative Agent and the Collateral Agent may consult with legal counsel selected
by it with due care (which may include counsel to EnergySolutions) and shall
not be liable for any action taken or suffered by it in good faith in consultation
with the Majority Lenders and in reasonable reliance on such consultations.


 


Section 9.4             Documents.


 


The
Administrative Agent and the Collateral Agent shall be under no duty to
examine, inquire into or pass upon the validity, effectiveness or genuineness
of this Agreement, any Note, any other Loan Document or any other instrument,
document or communication furnished pursuant hereto or in connection herewith,
and the Administrative Agent and the Collateral Agent shall be entitled to
assume (absent knowledge to the contrary) that they are valid, effective and
genuine, have been signed or sent by the proper parties and are what they
purport to be.


 


Section 9.5             CNAI and Affiliates.


 


With respect
to its Commitments and the Loans made by it and the Notes issued to it, if any,
CNAI shall have the same rights and powers under the Loan Documents as any
other Lender Party and may exercise the same as though it were not an Agent;
and the term “Lender Party” or “Lender Parties” shall, unless otherwise
expressly indicated, include CNAI in its individual capacity.  CNAI and its affiliates may accept deposits
from, lend money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, any Loan Party,
any of its Subsidiaries and any Person that may do business with or own
securities of any Loan Party or any such Subsidiary, all as if CNAI was not an
Agent and without any duty to account therefor to the Lender Parties.  No Agent shall have any duty to disclose any
information obtained or received by it or any of its Affiliates relating to any
Loan Party or any of its Subsidiaries to the extent such information was
obtained or received in any capacity other than as such Agent.


 


Section 9.6             Responsibility of the Administrative
Agent and the Collateral Agent.


 


The duties and
obligations of the Administrative Agent and the Collateral Agent under this
Agreement and the Security Documents are only those expressly set forth in this
Agreement and the Security Documents. 
The term “Agent” is used merely for convenience of reference, and the
Administrative Agent and the Collateral Agent shall not, either as a result of
the use of such term or for any other reason, have any duties or
responsibilities except those expressly set forth herein or in the other Loan
Documents, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or otherwise exist against the Administrative
Agent or the Collateral Agent.  Each of
the Administrative Agent and the Collateral Agent shall be entitled to assume
that no Default has occurred and is continuing unless it has actual knowledge,
or has been notified by EnergySolutions, of such fact or has been notified by a
Lender Party in writing that such Lender Party considers that a Default has
occurred and is continuing, and such Lender Party shall specify in detail the
nature thereof in writing.  Each of the
Administrative Agent and the Collateral Agent shall 


 


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not be liable
hereunder for any action taken or omitted to be taken except for its own gross
negligence or willful misconduct.  The
Administrative Agent shall provide promptly each Lender Party with copies of
such documents received from EnergySolutions in connection with this Agreement
as such Lender Party may reasonably request.


 


Section 9.7                                      Collateral
and Guaranty Matters.


 


(a)                                  The
Collateral Agent, as collateral agent hereunder and under the Security
Documents, is hereby authorized to act on behalf of the Secured Parties, in its
own capacity and through other agents and sub-agents appointed by it with due
care, under the Security Documents.  In
connection with its role as secured party with respect to the Collateral
hereunder, the Collateral Agent shall act as collateral agent, for itself and
for the ratable benefit of the Secured Parties, and such role as Collateral
Agent shall be disclosed on all appropriate accounts, certificates, filings,
mortgages and other Collateral documentation.


 


(b)                                 The
Lender Parties irrevocably authorize the Collateral Agent, at its option and in
its discretion, and the Collateral Agent may, without further written consent
or authorization from Lenders (subject to Section 11.12
hereof), and agrees with and for the benefit of EnergySolutions that it shall
execute any documents or instruments and take any further actions, in each case
at the sole cost and expense of EnergySolutions, necessary:


 


(i)                  to release any
Lien on any property granted to or held by the Collateral Agent under any Loan
Document (A) upon termination of the Commitments and payment in full of
all Secured Obligations (other than contingent indemnification obligations) and
the expiration or termination of all Letters of Credit, (B) that is sold
or transferred or to be sold or transferred as part of or in connection with
any sale, or transferred in any liquidation or merger, in each case, permitted
hereunder or under any other Loan Document, or (C) subject to Section 11.12, if approved, authorized or ratified in
writing by the Majority Lenders; or


 


(ii)               to release any
Guarantor (other than Parent) from its obligations under the Guaranty if such
Person ceases to be a Subsidiary as a result of a transaction permitted
hereunder.


 


Upon request
by the Administrative Agent at any time, the Majority Lenders will confirm in
writing the Administrative Agent’s or the Collateral Agent’s authority to
release or subordinate its interest in particular types or items of property,
or to release any Guarantor from its obligations under the Guaranty pursuant to
this Section 9.7.


 


Section 9.8                                      Action
by the Administrative Agent and the Collateral Agent.


 


(a)                                  Each
of the Administrative Agent and the Collateral Agent shall be entitled to use
its discretion with respect to exercising or refraining from exercising any
rights which may be vested in it by, and with respect to taking or refraining
from taking any action or actions which it may be able to take under or in
respect of, this Agreement, unless the Administrative Agent or the Collateral
Agent, as applicable, shall have been instructed by the Majority Lenders to
exercise or refrain from exercising such rights or to take or refrain from
taking such action.  Neither the
Administrative Agent nor the Collateral Agent shall incur any liability under
or in respect of this Agreement with respect to anything which it may do or
refrain from doing in the reasonable exercise of its judgment or which may seem
to it to be necessary or desirable in the circumstances for the protection of
the interests of the Lender Parties, except for its gross negligence or willful
misconduct as determined by a final, non-appealable order of a court having
jurisdiction over the subject matter.


 


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(b)                                 In
any event, neither the Collateral Agent nor the Administrative Agent shall be
liable to the Lenders or to any Lender in acting or refraining from acting
under this Agreement or any other Loan Document in accordance with the
instructions of the Majority Lenders or of all the Lenders, where expressly
required by this Agreement, and any action taken or failure to act pursuant to
such instructions shall be binding on all Lenders.


 


Section 9.9                                      Notice
of Default or Event of Default.


 


In the event
that the Administrative Agent or any Lender Party shall acquire actual
knowledge, or shall have been notified, of any Default (other than through a
notice by one party hereto to all other parties), the Administrative Agent or
such Lender Party shall promptly notify the Administrative Agent, and the
Administrative Agent shall take such action and assert such rights under this
Agreement as the Majority Lenders or of all the Lenders, where expressly
required by this Agreement, shall request in writing, and the Administrative
Agent shall not be subject to any liability by reason of its acting pursuant to
any such request.  If the Majority
Lenders shall fail to request the Administrative Agent to take action or to
assert rights under this Agreement in respect of any Default within ten (10) days
after their receipt of the notice of any Default from the Administrative Agent
or any Lender Party, or shall request inconsistent action with respect to such
Default, the Administrative Agent may, but shall not be required to, take such
action and assert such rights as it deems in its discretion to be advisable for
the protection of the Lender Parties.


 


Section 9.10                                Responsibility
Disclaimed.


 


Each of the Administrative Agent and the Collateral Agent shall not be
under any liability or responsibility whatsoever as agent:


 


(a)                                  to
EnergySolutions or any other Person as a consequence of any failure or delay in
performance by or any breach by any Lender Party or Lender Parties of any of
its or their obligations under this Agreement;


 


(b)                                 to
any Lender Party or Lender Parties as a consequence of any failure or delay in
performance by, or any breach by, (i) EnergySolutions of any of its
obligations under this Agreement or any Notes or any other Loan Document, or (ii) any
Subsidiary or any other obligor under any other Loan Document;


 


(c)                                  to
any Lender Party or Lender Parties, for any statements, representations or warranties
in this Agreement, or any other document contemplated by this Agreement or any
other Loan Document, or any information provided pursuant to this Agreement,
any other Loan Document or any other document contemplated by this Agreement,
or for the validity, effectiveness, enforceability or sufficiency of this
Agreement, any Notes, any other Loan Document or any other document
contemplated by this Agreement;


 


(d)                                 to
any Lender Party for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, any
Loan Document or any other instrument or document furnished pursuant thereto;
or


 


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(e)                                  Under
or in respect of any Loan Document by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telegram, telecopy
or telex) believed by it to be genuine and signed or sent by the proper party
or parties.


 


Section 9.11                                Indemnification.


 


(a)                                  Each
Lender Party severally agrees to indemnify each Agent and Calyon, in its capacity
as administrative agent under the Original Credit Agreement) (to the extent not
promptly reimbursed by EnergySolutions) from and against such Lender Party’s
ratable share (determined as provided below) of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against such Agent in any way relating to or
arising out of the Loan Documents and any action taken or omitted by Calyon in
any way relating to or arising out of the Original Credit Agreement or any
action taken or omitted by such Agent under the Loan Documents (collectively,
the “Indemnified Costs”); provided, however, that no
Lender Party shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Agent’s gross negligence or willful
misconduct as found in a final, non-appealable judgment by a court of competent
jurisdiction.  Without limitation of the
foregoing, each Lender Party agrees to reimburse each Agent promptly upon
demand for its ratable share of any costs and expenses (including, without
limitation, fees and expenses of counsel) payable by EnergySolutions under Section 11.2, to the extent that such Agent is not
promptly reimbursed for such costs and expenses by EnergySolutions.  In the case of any investigation, litigation
or proceeding giving rise to any Indemnified Costs, this Section 9.11
applies whether any such investigation, litigation or proceeding is brought by
any Lender Party or any other Person.


 


(b)                                 Each
Revolving Lender severally agrees to indemnify the Revolving Issuing Bank (to
the extent not promptly reimbursed by EnergySolutions) from and against such
Revolving Lender’s ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by, or asserted against the Revolving Issuing Bank
in any way relating to or arising out of the Loan Documents or any action taken
or omitted by the Revolving Issuing Bank under the Loan Documents; provided,
however, that no Revolving Lender shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Revolving Issuing
Bank’s gross negligence or willful misconduct as found in a final,
non-appealable judgment by a court of competent jurisdiction.  Without limitation of the foregoing, each
Revolving Lender agrees to reimburse the Revolving Issuing Bank promptly upon demand
for its ratable share of any costs and expenses (including, without limitation,
fees and expenses of counsel) payable by EnergySolutions under Section 11.2, to the extent that the Revolving Issuing
Bank is not promptly reimbursed for such costs and expenses by
EnergySolutions.  Each Term L/C Facility
Lender severally agrees to indemnify the Term L/C Facility Issuing Bank (to the
extent not promptly reimbursed by EnergySolutions) from and against such Term
L/C Facility Lender’s ratable share (determined as provided below) of any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by, or asserted against the Term L/C Facility Issuing
Bank in any way relating to or arising out of the Loan Documents or any action
taken or omitted by the Term L/C Facility Issuing Bank under the Loan
Documents; provided, however, that no Term L/C Facility Lender
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Term L/C Facility Issuing Bank’s gross negligence or willful
misconduct as found in a final, non-appealable judgment by a court of competent
jurisdiction.  Without limitation of the
foregoing, each Term L/C Facility Lender agrees to reimburse the Term L/C
Facility Issuing Bank promptly upon demand for its ratable share of any costs
and expenses (including, without limitation, fees and expenses of counsel)


 


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payable by EnergySolutions
under Section 11.2, to the extent that
the Term L/C Facility Issuing Bank is not promptly reimbursed for such costs
and expenses by EnergySolutions.  Each
Zion Lender severally agrees to indemnify the Zion L/C Issuing Banks (to the
extent not promptly reimbursed by EnergySolutions) from and against such Zion
Lender’s ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by, or asserted against the Zion L/C Issuing Banks
in any way relating to or arising out of the Loan Documents or any action taken
or omitted by the Zion L/C Issuing Banks under the Loan Documents; provided,
however, that no Zion Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Zion L/C Issuing
Bank’s gross negligence or willful misconduct as found in a final,
non-appealable judgment by a court of competent jurisdiction.  Without limitation of the foregoing, each
Zion Lender agrees to reimburse the Zion L/C Issuing Banks promptly upon demand
for their ratable share of any costs and expenses (including, without limitation,
fees and expenses of counsel) payable by EnergySolutions under Section 11.2, to the extent that the Zion L/C Issuing
Banks are not promptly reimbursed for such costs and expenses by
EnergySolutions.


 


(c)                                  For
purposes of this Section 9.11, the Lender
Parties’ respective ratable shares of any amount shall be determined, with
respect to any time deemed appropriate by such Agent, according to the sum of (i) the
aggregate principal amount of the Loans outstanding at such time and owing to
the respective Lender Parties, (ii) their respective Pro Rata Shares of
the aggregate Available Amount of all Letters of Credit outstanding at such
time, (iii) the aggregate unused portions of their respective Revolving
Commitments at such time and (iv) the aggregate unused portions of their
respective Zion L/C Commitments at such time; provided that the aggregate
principal amount of Letter of Credit Loans owing to the Revolving Issuing Bank
shall be deemed “owed to” the Revolving Lenders ratably in accordance with
their respective Revolving Commitments and the aggregate principal amount of
Letter of Credit Loans owing to the Zion L/C Issuing Banks shall be deemed “owed
to” the Zion Lenders ratably in accordance with their respective Zion
Commitments.  The failure of any Lender
Party to reimburse any Agent, the Revolving Issuing Bank or the Zion L/C
Issuing Banks, as the case may be, promptly upon demand for its ratable share
of any amount required to be paid by the Lender Parties to such Agent, the
Revolving Issuing Bank or the Zion L/C Issuing Banks, as the case may be, as
provided herein shall not relieve any other Lender Party of its obligation
hereunder to reimburse such Agent, the Revolving Issuing Bank or the Zion L/C
Issuing Banks, as the case may be, for its ratable share of such amount, but no
Lender Party shall be responsible for the failure of any other Lender Party to
reimburse such Agent, the Revolving Issuing Bank or the Zion L/C Issuing Banks,
as the case may be, for such other Lender Party’s ratable share of such
amount.  Without prejudice to the
survival of any other agreement of any Lender Party hereunder, the agreement
and obligations of each Lender Party contained in this Section 9.11
shall survive the payment in full of principal, interest and all other amounts
payable hereunder and under the other Loan Documents.


 


Section 9.12                                Credit
Decision.


 


Each Lender Party represents and warrants to each other Lender Party,
to each Agent and to the Administrative Agent that:


 


(a)                                  in
making its decision to enter into this Agreement and to make its Loans it has
independently taken whatever steps it considers necessary to evaluate the
financial condition and affairs of EnergySolutions and the Subsidiaries and
that it has made an independent credit judgment, and that it has not relied
upon the Administrative Agent, any Agent or any other Lender Party, or
information provided by the Administrative Agent (other than information
provided to


 


109

















 


the
Administrative Agent by EnergySolutions and forwarded by the Administrative
Agent to the Lender Parties); and


 


(b)                                 so
long as any portion of the Obligations remains outstanding, it will continue to
make its own independent evaluation of the financial condition and affairs of
EnergySolutions and the Subsidiaries.


 


Section 9.13                                Successor
Agents.


 


(a)                                  Resignation
of Administrative Agent.  The
Administrative Agent may resign at any time by giving written notice five days
prior to the effective date of such resignation to the Lender Parties and
EnergySolutions.  Upon any such
resignation, the Majority Lenders shall have the right, in consultation with
EnergySolutions, to appoint a successor Administrative Agent; provided,
that, at the time of the resignation of the Administrative Agent, no successor
Administrative Agent has been appointed by the Majority Lenders, the retiring
Administrative Agent may, on behalf of the Lender Parties, appoint a successor
Administrative Agent, which shall be any Lender Party or a commercial bank organized
under the laws of the United States of America or any political subdivision
thereof which has combined capital and reserves in excess of $250,000,000.  Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges, duties and obligations of the retiring
Administrative Agent and the retiring Administrative Agent shall be discharged
from its duties and obligations under the Loan Documents.  After any retiring Administrative Agent’s
resignation hereunder as Administrative Agent (including, for the avoidance of
doubt, Calyon’s resignation as administrative agent pursuant to the Successor
Agent Agreement), the provisions of this Article shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as the Administrative Agent (and with respect to Calyon, including
any action taken or omitted to be taken subsequent to its resignation in
connection with (x) the payoff of the Original Term Loans or (y) other
obligations under the Original Credit Agreement).


 


(b)                                 Resignation
of Collateral Agent.  The Collateral
Agent may resign at any time by giving written notice of such resignation to
the Lender Parties and EnergySolutions. 
Upon any such resignation, the Majority Lenders shall have the right, in
consultation with EnergySolutions, to appoint a successor Collateral Agent; provided
that if, at the time of the resignation of the Administrative Agent, no
successor Collateral Agent has been appointed by the Majority Lenders, the
retiring Collateral Agent may, on behalf of the Lender Parties, appoint a
successor Collateral Agent and, after its resignation and prior to the appointment
of any successor Collateral Agent, the retiring Collateral Agent will act as a
nominee for perfection with respect to the applicable Collateral.  Upon the acceptance of any appointment as
Collateral Agent hereunder by a successor Collateral Agent, such successor
Collateral Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges, duties and obligations of the retiring Collateral
Agent and the retiring Collateral Agent shall be discharged from its duties and
obligations under the Loan Documents. 
After any retiring Collateral Agent’s resignation hereunder as Collateral
Agent (including, for the avoidance of doubt, Calyon’s resignation as
collateral agent pursuant to the Successor Agent Agreement), the provisions of
this Article shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the
Collateral Agent (and with respect to Calyon, including any action taken or
omitted to be taken subsequent to its resignation in connection with the payoff
of the Original Term Loans).


 


(c)                                  General.  If no successor agent shall have been
appointed and shall have accepted such appointment prior to the resignation of
the Administrative Agent or Collateral Agent, then the retiring Administrative
Agent or Collateral Agent, as applicable, shall thereupon be discharged from
its duties and


 


110

















 


obligations
under the Loan Documents and the Majority Lenders shall thereafter perform all
duties of the retiring Administrative Agent or Collateral Agent, as applicable,
under the Loan Documents until such time, if any, as the Majority Lenders
appoint a successor Administrative Agent or Collateral Agent, as applicable, as
provided above.  After any retiring agent’s
resignation hereunder as Administrative Agent or Collateral Agent shall have
become effective (including, for the avoidance of doubt, Calyon’s resignation
as administrative agent and collateral agent pursuant to the Successor Agent
Agreement), the provisions of this Article 9
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent or Collateral Agent, as applicable, under
this Agreement (and with respect to Calyon, including any action taken or
omitted to be taken subsequent to its resignation in connection (x) with
the payoff of the Original Term Loans or (y) other obligations under the
Original Credit Agreement).


 


Section 9.14                                Delegation
of Duties.


 


The
Administrative Agent may execute any of its duties under the Loan Documents by
or through agents or attorneys selected by it using reasonable care, and shall
be entitled to advice of counsel concerning all matters pertaining to such
duties.


 


Section 9.15                                Additional
Agents.


 


None of the
Lender Parties or other entities identified on the facing page of, signature
pages of or elsewhere in this Agreement as a “syndication agent,” “documentation
agent,” “sole bookrunner” or “sole lead arranger” shall have any right, power,
obligation, liability, responsibility or duty under this Agreement or any other
Loan Document other than those applicable to all Lender Parties as such.  Without limiting the foregoing, none of the
Lender Parties so identified shall have or be deemed to have any fiduciary
relationship with any other Lender Party. 
Each Lender Party acknowledges that it has not relied, and will not
rely, on any of the Lender Parties or other entities so identified in deciding
to enter into this Agreement or any other Loan Document or in taking or not
taking action hereunder or thereunder.


 


Section 9.16                                Administrative
Agent May File Proofs of Claim.


 


(a)                                  In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent or its designee
(irrespective of whether the principal of any Loan or Letter of Credit shall
then be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on
EnergySolutions) shall be entitled and empowered, by intervention in such
proceeding or otherwise:


 


(i)                  to file and
prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, Letter of Credit Agreement and all other
Obligations that are owing and unpaid and to file such other documents as may
be necessary or advisable in order to have the claims of the Lender Parties and
the Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lender Parties and the
Administrative Agent and their respective agents and counsel and all other
amounts due the Lender Parties and the Administrative Agent under Sections 2.3, 2.5 and 11.2) allowed in such judicial proceeding; and


 


(ii)               to collect and receive
any monies or other property payable or deliverable on any such claims and to
distribute the same;


 


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and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Lender Party to make such payments to the Administrative Agent and, in the
event that the Administrative Agent shall consent to the making of such
payments directly to the Lender Parties, to pay to the Administrative Agent any
amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other
amounts due the Administrative Agent under Sections 2.5
and 11.2.


 


(b)                                 Nothing
contained herein shall be deemed to authorize the Administrative Agent to authorize
or consent to or accept or adopt on behalf of any Lender Party any plan of
reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender Party or to authorize the
Administrative Agent to vote in respect of the claim of any Lender Party in any
such proceeding.


 


Section 9.17                                Security
Documents.


 


Notwithstanding
anything herein to the contrary, each Lender also acknowledges that CNAI, Collateral
Agent hereunder, is also acting as Collateral Agent under the Duratek Loan
Agreement, and in such dual capacities has entered into the Security Documents
on behalf of both the Secured Parties hereunder as well as the secured parties
under the Duratek Loan Agreement, each Secured Party hereby waiving any actual
or potential conflict or breach of duty created or existing as the result of
such dual capacities and acknowledging that it has read the terms and
conditions of the Security Documents and has accepted the same without reliance
on any of the Agents.


 


ARTICLE 10.


 


Change in Circumstances Affecting Fixed Rate
Loans


 


Section 10.1                                Eurodollar
Basis Determination Inadequate or Unfair.


 


If, with
respect to any proposed Eurodollar Option Loan for any Interest Period, the
Administrative Agent determines after consultation with the Lenders that
deposits in Dollars (in the applicable amount) are not being offered to each of
the Lenders in the relevant market for such Interest Period, the Administrative
Agent shall forthwith give notice thereof to EnergySolutions and the Lenders,
whereupon until the Administrative Agent notifies EnergySolutions that the
circumstances giving rise to such situation no longer exist, the obligations of
any affected Lender to make or continue Eurodollar Option Loans shall be
suspended.


 


Section 10.2                                Illegality.


 


If after the
Third Amended and Restated Credit Agreement Effective Date the adoption of any
Applicable Law, or any change in any Applicable Law (whether adopted before or
after the Third Amended and Restated Credit Agreement Effective Date), or any
change in interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender with any directive (whether
or not having the force of law) of any such authority, central bank or
comparable agency, shall make it unlawful or impossible, or any such
governmental authority, central bank or comparable agency shall assert that it
is unlawful, for any Lender to make, maintain or fund Eurodollar Option Loans,
such Lender shall so notify


 


112

















 


the
Administrative Agent, and the Administrative Agent shall forthwith give notice
thereof to the other Lenders and EnergySolutions.  Before giving any notice to the
Administrative Agent pursuant to this Section 10.2,
such Lender shall designate a different lending office if such designation will
avoid the need for giving such notice and will not, in the sole judgment of
such Lender, be otherwise materially disadvantageous to such Lender.  Upon receipt of such notice, notwithstanding
anything contained in Article 2
hereof, (a) the obligation of the Lenders to make or continue Eurodollar
Option Loans shall be suspended until the Administrative Agent shall notify
EnergySolutions and the Lenders that the circumstances causing such suspension
no longer exist and (b) unless EnergySolutions, within three (3) Business
Days thereafter, converts all Eurodollar Option Loans into Base Rate Option
Loans in accordance with the terms of this Agreement, EnergySolutions shall
repay in full the then outstanding principal amount of each affected Eurodollar
Option Loan of such Lender, together with accrued interest thereon and any reimbursement
required under Section 2.11 hereof, on
either (i) the last day of the then current Interest Period applicable to
such affected Eurodollar Option Loans if such Lender may lawfully continue to
maintain and fund such Eurodollar Option Loans to such day or (ii) immediately
if such Lender may not lawfully continue to fund and maintain such affected
Eurodollar Option Loans to such day. 
Concurrently with repaying each affected Eurodollar Option Loan of such
Lender, notwithstanding anything contained in Article 2
or Article 3 hereof, EnergySolutions
may borrow a Base Rate Option Loan from such Lender, and such Lender shall make
such Base Rate Option Loan, if so requested, in an amount such that the outstanding
principal amount held by such Lender shall equal the outstanding principal
amount immediately prior to such repayment.


 


Section 10.3                                Increased
Costs.


 


(a)                                  If
after the Third Amended and Restated Credit Agreement Effective Date the
adoption or effectiveness of any Applicable Law or any change or effectiveness
in any Applicable Law (whether adopted before or after the Third Amended and
Restated Credit Agreement Effective Date) or any interpretation or change in
interpretation or administration or effectiveness thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof or compliance by any Lender Party with any directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:


 


(i)                                     shall
subject any Lender Party to any tax, duty or other charge with respect to its
obligation to make or continue Eurodollar Option Loans, or its Eurodollar Option
Loans or Term L/C Facility Loans, or shall change the basis of taxation of
payments to any Lender Party of the principal of or interest on its Eurodollar
Option Loans, Term L/C Facility Loans or in respect of any other amounts due
under this Agreement, in respect of its Eurodollar Option Loans, Term L/C
Facility Loans or its obligation to make or continue Eurodollar Option Loans
(except for changes in the rate or method of calculation of tax on the overall
net income of such Lender Party); or


 


(ii)                                  shall
impose, modify or deem applicable any reserve (including, without limitation,
any imposed by the Board of Governors of the Federal Reserve System, but
excluding any included in an applicable Eurodollar Reserve Percentage), special
deposit, capital adequacy, assessment or other requirement or condition against
assets of, deposits with or for the account of, or commitments or credit
extended by, any Lender Party or shall impose on any Lender Party or the London
interbank borrowing market or the New York certificate of deposit market any
other condition affecting its obligation to make or continue Eurodollar Option
Loans or its Eurodollar Option Loans or Term L/C Facility Loans;


 


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and the result
of any of the foregoing is to increase the cost to such Lender Party of making
or maintaining any such Eurodollar Option Loans or Term L/C Facility Loans, or
of agreeing to issue or of issuing or maintaining or participating in Letters
of Credit or of agreeing to make or of making or maintaining Letter of Credit
Loans, or to reduce the amount of any sum received or receivable by such Lender
Party under this Agreement with respect thereto, then, within five (5) days
after demand by such Lender Party, EnergySolutions agrees to pay to such Lender
Party such additional amount or amounts as will compensate such Lender Party
for such increased costs (other than any increased costs resulting from Taxes
that are Covered Taxes or Other Taxes (which shall be governed exclusively by Section 2.14) or are excluded from the definition of
Covered Taxes under Section 2.14(a)).  Each Lender Party will promptly notify EnergySolutions
and the Administrative Agent of any event of which it has knowledge, occurring
after the Third Amended and Restated Credit Agreement Effective Date, which
will entitle such Lender Party to compensation pursuant to this Section 10.3 and will designate a different lending
office if such designation will avoid the need for, or reduce the amount of,
such compensation and will not, in the sole judgment of such Lender Party, be
otherwise disadvantageous to such Lender Party.


 


(b)                                 Any
Lender Party claiming compensation under this Section 10.3
shall provide EnergySolutions with a written certificate setting forth the
additional amount or amounts to be paid to it hereunder and calculations
therefor in reasonable detail.  Such
certificate shall be presumptively correct, absent manifest error.  In determining such amount, such Lender Party
may use any reasonable averaging and attribution methods.  If any Lender Party demands compensation
under this Section 10.3, EnergySolutions
may at any time, upon at least five (5) Business Days’ prior notice to
such Lender Party, prepay in full the then outstanding affected Eurodollar
Option Loans of such Lender Party, together with accrued interest thereon to
the date of prepayment, along with any reimbursement required under Section 2.11 hereof. 
Concurrently with prepaying such Eurodollar Option Loans, notwithstanding
anything contained in Article 2
or Article 3 hereof, EnergySolutions
may borrow a Base Rate Option Loan from such Lender Party, and such Lender
Party shall, if so requested, make such Base Rate Option Loan in an amount such
that the outstanding principal amount held by such Lender Party shall equal the
outstanding principal amount immediately prior to such prepayment.


 


(c)                                  If
any Lender requests compensation under this Section 10.3,
then EnergySolutions may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained
in, and consents required by, Section 11.5),
all of its interests, rights and obligations under this Agreement and the
related Loan Documents to an assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided
that:  (i) EnergySolutions shall
have paid to the Administrative Agent the assignment fee specified in Section 11.5, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of and premium (if any)
on its Loans, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder and under the other Loan Documents (including any
amounts Section 2.11, treating such
assignment as a voluntary prepayment) from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or EnergySolutions (in the
case of all other amounts); (iii) such assignment will result in a reduction
in such compensation or payments thereafter; and (iv) such assignment does
not conflict with Applicable Law.  A
Lender shall not be required to make any such assignment or delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling EnergySolutions to require such assignment and delegation cease to
apply.  Each Lender agrees that, if
EnergySolutions elects to replace such Lender in accordance with this Section,
it shall promptly execute and deliver to the Administrative Agent an Assignment
and Assumption to evidence such sale and purchase and shall deliver to the Administrative
Agent any Note (if Notes have been issued in respect of such Lender’s Loans)
subject to such Assignment and Assumption; provided that the failure of
any such non-consenting Lender to execute an


 


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Assignment and
Assumption shall not render such sale and purchase (and the corresponding
assignment) invalid and such assignment shall be recorded in the Register.


 


Section 10.4                                Effect
on Other Loans.


 


(a)                                  If
notice has been given pursuant to Section 10.1,
10.2 or 10.3
suspending the obligation of any Lender to make or continue Eurodollar Option
Loans, or requiring Eurodollar Option Loans of any Lender to be repaid or
prepaid, then, unless and until such Lender notifies EnergySolutions that the
circumstances giving rise to such repayment no longer apply, all Loans which
would otherwise be made or continued as Eurodollar Option Loans shall, at the
option of EnergySolutions, be made or continued instead as Base Rate Option
Loans.


 


(b)                                 If,
with respect to any Eurodollar Option Loan, Lenders owed at least 51% of the
then aggregate unpaid principal amount thereof notify the Administrative Agent
that the Eurodollar Rate for any Interest Period for such Loan will not
adequately reflect the cost to such Lenders of making, funding or maintaining
their Eurodollar Option Loans for such Interest Period, the Administrative
Agent shall forthwith so notify EnergySolutions and the Lenders which have made
such Loan, whereupon (i) such Eurodollar Revolving Loan will automatically,
on the last day of the then existing Interest Period therefor, be reborrowed as
a Base Rate Revolving Loan, (ii) such Eurodollar Term Loan will automatically,
on the last day of the then existing Interest Period therefor, be continued as
a Base Rate Term Loan and (iii) the obligation of the Lenders which have
made such Loan to make further or continue Eurodollar Option Loans shall be
suspended until the Administrative Agent shall notify EnergySolutions that such
Lenders have determined that the circumstances causing such suspension no
longer exist.


 


ARTICLE 11.


 


Miscellaneous


 


Section 11.1                                Notices.


 


(a)                                  All
notices and other communications provided for hereunder shall be in writing
(including fax or e-mail communication) and mailed, telecopied or
delivered.  All such notices and other communications
shall, when mailed, faxed or e-mailed, be effective when deposited in the
mails, transmitted by fax or e-mail, except that notices and communications to
any Agent pursuant to Article 2,
3 or 9
shall not be effective until received by such Agent.  All notices and other communications under
this Agreement shall be given to the parties hereto at the following addresses:


 


(i)                  If to
EnergySolutions, to it at:


 


EnergySolutions LLC

423 West 300 South

Salt Lake City, UT  84101

Attn:  Philip Strawbridge

Tel:   (801) 649-2298

Fax:  (801) 413-5649

E-mail:  pstrawbridge@energysolutions.com


 


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with a copy to:


 


Lindsay Goldberg &
Bessemer L.P.

630 Fifth Avenue, 30th Floor

New York, NY  10111

Attn:  [Andrew Weinberg]

Tel:  [(212) 651-1160]

E-mail: 
[weinberg@lindsaygoldbergllc.com]


 


If to the Administrative Agent,
to it at:


 


Citicorp North America, Inc.

390 Greenwich Street

New York, NY  10013

Attn:  Blake Gronich, Director, Leveraged
Finance

Tel:  (212) 723-9402

E-mail:  blake.gronich@citi.com


 


with a copy to such counsel to
the Administrative Agent as the Administrative Agent may designate in writing
from time to time.


 


(ii)               If to the Lender
Parties, to them at the addresses set forth beside their names on Schedules
4-A, 4-B, 4-C and 4-D.


 


Copies shall
be provided to Persons other than parties hereto only in the case of notices
under Article 8 hereof.


 


(b)                                 Any
party hereto may change the address to which notices shall be directed under
this Section 11.1 by giving ten (10) days’
written notice of such change to the other parties.


 


(c)                                  Delivery
by fax of an executed counterpart of a signature page to any amendment or
waiver of any provision of this Agreement or the Notes or of any Exhibit hereto
to be executed and delivered hereunder shall be effective as delivery of an
original executed counterpart thereof. 
Electronic mail and Internet and intranet websites may be used by the
Administrative Agent and/or the Agents to distribute communications, such as
financial statements and other information as provided in Article 6,
and to distribute Loan Documents for execution by the parties thereto, and the
Administrative Agent and the Agents shall not be responsible for any losses,
costs, expenses and liabilities that may arise by reason of the use thereof,
except for their own gross negligence or willful misconduct.  The Administrative Agent and the parties
shall be entitled to rely and act upon any notices (including telephonic
notices) purportedly given by or on behalf of EnergySolutions even if (i) such
notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any form of notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any confirmation
thereof.  No Agent and no Lender Party
shall be liable or responsible for any loss, cost, expense or liability
resulting from the reliance by such Person on each notice purportedly given by
or on behalf of EnergySolutions in accordance with this Agreement, other than,
with respect to any Agent or Lender Party, the losses, costs, expenses and
liabilities that result from the gross negligence or willful misconduct of such
Agent or Lender Party.  All telephonic
notices to and other communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.


 


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Section 11.2                                Costs
and Expenses.


 


(a)                                  EnergySolutions
will promptly pay, or reimburse, without duplication:


 


(i)                                     all
reasonable out-of-pocket expenses of the Administrative Agent or the Collateral
Agent in connection with the preparation, structuring, due diligence,
negotiation, execution, delivery, syndication and administration of this
Agreement and the other Loan Documents and the transactions related hereto,
contemplated hereunder and thereunder and the making of the initial Loans
hereunder (whether or not such Loans are made), including, but not limited to,
the reasonable fees and disbursements of Cahill Gordon & Reindel LLP,
special counsel for the Arrangers;


 


(ii)                                  all
reasonable out-of-pocket expenses of the Administrative Agent or the Collateral
Agent in connection with the administration of the transactions contemplated in
this Agreement or the other Loan Documents, the restructuring and “work out” of
such transactions and the preparation, negotiation, execution and delivery of
any waiver, amendment or consent, whether or not such waiver, amendment or
consent shall become effective, by the Administrative Agent and the Lender
Parties relating to this Agreement or the other Loan Documents, including, but
not limited to, the reasonable fees and disbursements of any experts, agents or
consultants and of special counsel for the Administrative Agent or the
Collateral Agent (limited to one outside counsel to the Administrative Agent
and the Collateral Agent and such local counsel as may be necessary for the
Administrative Agent and the Collateral Agent), but excluding any assignment
fee pursuant to Section 11.5(b) hereof;
and


 


(iii)                               all
out-of-pocket costs and expenses of the Administrative Agent or the Collateral
Agent and the Lenders in connection with the enforcement of this Agreement or
the other Loan Documents and all out-of-pocket costs and expenses of collection
if an Event of Default occurs in the payment of the Loans or the other Obligations,
whether in any action, suit or litigation, or any bankruptcy, insolvency,
liquidation, or other similar proceeding affecting creditors’ rights generally,
which in each case shall include reasonable fees and out-of-pocket expenses of
one respective outside counsel and such local counsel as may be necessary for
the Administrative Agent, the Collateral Agent and the Lenders.


 


(b)                                 EnergySolutions
also agrees not to assert any claim against any Agent, any Lender Party or any
of their Affiliates, or any of their respective officers, directors, employees,
agents and advisors, on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to the
Commitments, the actual or proposed use of the proceeds of any Loan or Letter
of Credit, the Loan Documents or any of the transactions contemplated by the
Loan Documents.


 


(c)                                  If
any Loan Party fails to pay when due any costs, expenses or other amounts
payable by it under any Loan Document, including, without limitation, fees and
expenses of counsel and indemnities, such amount may be paid on behalf of such
Loan Party by the Administrative Agent.


 


Section 11.3                                Waivers.


 


The rights and
remedies of the Administrative Agent, the Collateral Agent and the Lender
Parties under this Agreement and the other Loan Documents shall be cumulative
and not exclusive of any rights or remedies which they would otherwise
have.  No failure or delay by the
Administrative Agent, the Collateral Agent or the Lender Parties, or any of
them, in exercising any right shall operate as a waiver of such right.  The Administrative Agent and the Lender
Parties expressly reserve the right to require strict


 


117














 


compliance
with the terms of this Agreement in connection with any future funding of a request
for a Loan.  In the event the Lender
Parties decide to fund a Loan or issue a Letter of Credit at a time when EnergySolutions
is not in strict compliance with the terms of this Agreement, such decision by
the Lender Parties shall not be deemed to constitute an undertaking by the
Lender Parties to fund any further Loans, to issue any further Letter of Credit
or to preclude the Lender Parties and the Administrative Agent from exercising
any rights available under the Loan Documents or at law or equity.  Any waiver or indulgence granted by the
Administrative Agent, the Lender Parties or the Majority Lenders shall not
constitute a modification of this Agreement, except to the extent expressly
provided in such waiver or indulgence, or constitute a course of dealing at
variance with the terms of this Agreement such as to require further notice of
their intent to require strict adherence to the terms of this Agreement in the
future.


 


Section 11.4                                Set-Off.


 


In addition to
any rights now or hereafter granted under Applicable Law and not by way of limitation
of any such rights, upon the occurrence of an Event of Default and during the
continuation thereof, the Administrative Agent and the Lender Parties are
hereby authorized by EnergySolutions at any time or from time to time, without
notice to EnergySolutions or to any other Person, any such notice being hereby
expressly waived, to set off and to appropriate and to apply any and all
deposits (general or special, time or demand, including, but not limited to,
Indebtedness evidenced by certificates of deposit, in each case whether matured
or unmatured) and any other Indebtedness at any time held or owing by any
Lender Party or the Administrative Agent to or for the credit or the account of
EnergySolutions or any of its Subsidiaries against and on account of the
Obligations irrespective of whether (a) any Lender Party or the
Administrative Agent shall have made any demand hereunder or (b) the Administrative
Agent shall have declared the principal of and interest on the Loans and other
amounts due hereunder to be due and payable as permitted by Section 8.2 and although such Obligations or any of
them shall be contingent or unmatured. 
Upon direction by the Administrative Agent with the consent of the
Majority Lenders, each Lender Party holding deposits of EnergySolutions or any
of its Subsidiaries shall exercise its set-off rights as so directed.


 


Section 11.5                                Binding
Effect and Assignment.


 


(a)                                  This
Agreement shall become effective when it shall have been executed by EnergySolutions
and each Agent and the Administrative Agent shall have been notified by each
Lender party hereto, and EnergySolutions shall have been notified by the Administrative
Agent, that each such Lender party hereto has executed it and thereafter shall
be binding upon and inure to the benefit of EnergySolutions, each Agent and
each such Lender and their respective successors and assigns, except that
EnergySolutions shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of all of the Lenders.


 


(b)                                 Each
Lender may enter freely into participation agreements with respect to or
otherwise grant participations in its Loans to one or more banks or other
lenders or financial institutions; provided, however, that (i) such
Lender’s obligations hereunder shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations, (iii) the participant shall not be entitled by the
benefit of its participation to vote or otherwise take action under this
Agreement or any other Loan Document, except with respect to the matters
referred to in Section 11.12 hereof relating
to the matters in which affected Lenders are required to vote or all Lenders
are required to vote, (iv) such Lender shall deliver to the Administrative
Agent and EnergySolutions (in such number of copies as shall be reasonably
requested by the recipient) duly signed and properly completed copies of 


 


118

















 


Internal
Revenue Service Form W-8 IMY (or any successor thereto) for each
participant, and (v) EnergySolutions shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations hereunder.  In addition, each
Lender may sell up to 100%, assign or create a security interest in all or any
portion of its rights hereunder and under the other Loan Documents to any other
Person on an assignment basis; provided that (A) (I) at any
time hereunder, such assignment is to an Affiliate of the assignor, an Approved
Fund, another Lender or any Conduit Lender, (II) prior to a date to be
separately agreed among EnergySolutions, Parent and the Arranger (the “Syndication
Date”), such assignment is made by the Administrative Agent in connection
with syndication of any of the Loans, (III) prior to the Syndication Date,
the Administrative Agent has given its written consent to the proposed assignee
of a Lender hereunder or (IV) after the Syndication Date, EnergySolutions
(unless there exists at the time of such assignment an Event of Default
hereunder) and the Administrative Agent have given their prior written consent
to the proposed assignee of a Lender hereunder, which consents shall not be
unreasonably delayed, conditioned or withheld, and (B) each such assignment
shall be in a principal amount of not less than the lesser of (I) the
entire amount of such Lender’s interest hereunder or (II) $1,000,000
(calculated for the Term Loans and the Term L/C Facility Loans on a combined
basis with such Lender’s contemporaneous assignment of its Duratek Loans)
unless an assignment is from one Lender to another or to an Approved Fund or an
Affiliate of a Lender, in which case there shall be no minimum assignment
amount.  Each Lender who sells or assigns
a portion of its Loans pursuant hereto shall pay to the Administrative Agent an
assignment fee of $3,500 with respect to each assignment (except that one such
fee shall be payable in connection with simultaneous assignments (i) to or
by two or more Approved Funds and (ii) of Duratek Loans), such fee to be
paid to the Administrative Agent not later than the effective date of the
assignment of the Loan relating thereto. 
All assignments by any of the Lenders of any interests hereunder shall
be made pursuant to an Assignment and Acceptance.  Each Lender may provide any proposed
participant or assignee with confidential information provided to such Lender
regarding EnergySolutions, Parent and the Subsidiaries on a confidential basis,
and such participant or assignee shall agree to maintain such confidentiality
in accordance with the provisions of Section 11.19
hereof.  Further, each permitted assignee
or participant with respect to any portion of the Loans shall be entitled to
the benefits, and subject to the burdens, of Sections
2.11, 2.13, 2.14
and Article 10 hereof and all other provisions
hereof and of the other Loan Documents as a “Lender” hereunder.  Each Participant shall be entitled to the
benefits of Sections 2.11, 2.13 and 2.14 and Article 10 (subject to the requirements of those
Sections) to the same extent as if it were a Lender, but no participant shall
be entitled to a greater payment under Section 2.14
than the applicable Lender would have been entitled to receive with respect to
the participation sold.  Upon the grant
of a participation of its commitment by a Lender pursuant to this Section 11.5(b), such Lender (on behalf of EnergySolutions)
shall maintain a register analogous to the Register described in Section 11.5(c) below.  Notwithstanding anything to the contrary set
forth herein, each assignment by a Lender of its Term Loans or Term L/C
Facility Loans hereunder shall be made concurrently with the ratable assignment
of all or a portion of such Lender’s (i) Duratek Loans, (ii) Term L/C
Facility Loans or (iii) Term Loans, as applicable, and no assignment of
the Term Loans or Term L/C Facility Loans shall be made by any Lender hereunder
unless such Lender makes a simultaneous ratable assignment of all or a portion
of its Duratek Loans and its Term L/C Facility Loans or Term Loans, as
applicable; provided that immaterial deviations of the ratable
assignment provisions in this Section 11.5(b) shall
be permitted.  Before and after any
assignment of Term Loans or Term L/C Facility Loans by any Lender, the ratios
of (i) such Lender’s Term Loans to the aggregate principal amount of Term
Loans outstanding, (ii) such Lender’s Term L/C Facility Loans to the
aggregate amount of Term L/C Facility Loans and (iii) such Lender’s
Duratek Loans to the aggregate principal amount of Duratek Loans outstanding,
shall be identical; provided that immaterial deviations of the ratable
assignment provisions in this Section 11.5(b) shall
be permitted.


 


(c)                                  The
Administrative Agent, acting for this purpose as an agent of EnergySolutions,
shall maintain a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of 


 


119

















 


the names and
addresses of the Lenders and the Commitments of and the principal amount of the
Loans owing to each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be conclusive,
absent manifest error, and EnergySolutions, the Administrative Agent and the
Lenders shall treat each Person whose name is recorded in the Register pursuant
to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. 
The Register shall be available for inspection at the offices of the
Administrative Agent by EnergySolutions or any Lender, at any reasonable time
during normal business hours and from time to time upon reasonable prior
notice.  Each Lender agrees to provide
the Administrative Agent and EnergySolutions with written notice of the
assignment of all or part of its rights hereunder.  Upon the Administrative Agent’s receipt of a
duly completed Assignment and Acceptance executed by an assigning Lender and an
assignee Lender, the assignee’s completed administrative questionnaire (unless
the assignee is already a Lender), the fee referred to in Section 11.5(b) above
and any written consent to such assignment required thereby, the Administrative
Agent shall accept such Assignment and Acceptance and record the information
contained therein in the Register.  No
assignment shall be effected for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.  In connection with each assignment of Term
L/C Facility Loans, the Term L/C Facility Loan of the assignor Lender shall not
be released, but shall instead be purchased by the relevant assignee and
continue to be held for application (to the extent not already applied) in
accordance with Article 2 to satisfy such
assignee’s obligations in respect of Term L/C Facility Letters of Credit.  Each Term L/C Facility Lender agrees that
immediately prior to each assignment by a Term L/C Facility Lender (i) the
Administrative Agent shall establish a new Term L/C Facility Collateral
Sub-Account in the name of the assignee, (ii) unless otherwise consented
to by the Administrative Agent, a corresponding portion of the Term L/C
Facility Loan credited to the Term L/C Facility Collateral Sub-Account of the
assignor Lender shall be purchased by the assignee and shall be transferred
from the assignor’s Term L/C Facility Collateral Sub-Account to the assignee’s
Term L/C Facility Collateral Sub-Account and (iii) if after giving effect
to such assignment the Term L/C Facility Loan of the assignor Lender shall be
zero, the Administrative Agent shall close the Term L/C Facility Collateral
Sub-Account of such assignor Lender.


 


(d)                                 Notwithstanding
anything to the contrary contained in this Section 11.5,
any Lender that is a fund that invests in bank loans may (without the consent
of EnergySolutions or the Administrative Agent) pledge all or a portion of its
rights in connection with this Agreement to the trustee or any holder of
obligations or agents therefor owed, or securities issued, by such fund as security
for such obligations or securities.  No
pledge described in the immediately preceding sentence shall release any such
Lender from its obligations hereunder.


 


(e)                                  The
Revolving Issuing Bank may assign to an assignee all of its rights and
obligations under the undrawn portion of its Revolving Letter of Credit
Commitment at any time; provided, however, that (i) each
such assignment shall be made in accordance with clause (A) of the second
proviso in Section 11.5(b) and (ii) the
parties to each such assignment shall execute and deliver to the Administrative
Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance, together with a processing and recordation fee of $3,500.  The Revolving Issuing Bank shall promptly
notify EnergySolutions of such Assignment.


 


(f)                                    Except
as specifically set forth in Section 11.5(b) hereof,
nothing in this Agreement or any Notes, express or implied, is intended to or
shall confer on any Person other than the respective parties hereto and thereto
and their successors and assignees permitted hereunder and thereunder any
benefit or any legal or equitable right, remedy or other claim under this
Agreement or any Notes.


 


(g)                                 The
provisions of this Section 11.5
shall not apply to any purchase of participations among the Lenders pursuant to
Section 2.12 hereof.


 


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(h)                                 Notwithstanding
anything to the contrary contained herein, any Lender Party (a “Granting
Lender”) may grant to a special purpose funding vehicle identified as such
in writing from time to time by the Granting Lender to the Administrative Agent
and EnergySolutions (a “Conduit Lender”) the option to provide all or
any part of any Loan that such Granting Lender would otherwise be obligated to
make pursuant to this Agreement; provided that (i) nothing herein
shall constitute a commitment by any Conduit Lender to fund any Loan, and (ii) if
a Conduit Lender elects not to exercise such option or otherwise fails to make
all or any part of such Loan, the Granting Lender shall be obligated to make
such Loan pursuant to the terms hereof. 
The making of a Loan by a Conduit Lender hereunder shall utilize the applicable
Commitment of the Granting Lender to the same extent, and as if, such Loan were
made by such Granting Lender.  Each party
hereto hereby agrees that (i) no Conduit Lender shall be liable for any indemnity
or similar payment obligation under this Agreement for which a Lender Party
would be liable, (ii) no Conduit Lender shall be entitled to the benefits
of Sections 2.13, 2.14
and 10.3 (or any other increased costs
protection provision) to any greater extent than the Granting Lender would have
been entitled absent the use of a Conduit Lender and (iii) the Granting
Lender shall for all purposes, including, without limitation, the approval of
any amendment or waiver of any provision of any Loan Document, remain the
Lender Party of record hereunder.  In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that
is one year and one day after the payment in full of all outstanding commercial
paper or other senior Indebtedness of any Conduit Lender, it will not institute
against, or join any other Person in instituting against, such Conduit Lender
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding under the laws of the United States or any State thereof.  Notwithstanding anything to the contrary contained
in this Agreement, any Conduit Lender may (i) with notice to, but without
prior consent of, EnergySolutions and the Administrative Agent and without
paying any processing fee therefor, assign all or any portion of its interest
in any Loan to the Granting Lender and (ii) disclose on a confidential
basis any non-public information relating to its funding of advances to any rating
agency, commercial paper dealer or provider of any surety or guarantee or
credit or liquidity enhancement to such Conduit Lender.  This Section 11.5(h) may
not be amended without the prior written consent of each Granting Lender all or
any part of whose Loans are being funded by a Conduit Lender at the time of
such amendment.


 


(i)                                     Notwithstanding
any contrary provision of this Section 11.5,
any Lender may at any time pledge the Obligations held by it and such Lender’s
rights under this Agreement and the other Loan Documents to a Federal Reserve
Bank; provided that no such pledge to a Federal Reserve Bank shall release
such Lender from such Lender’s obligations hereunder or under any other Loan
Document.


 


Section 11.6                                Accounting
Principles.


 


Except as set
forth in the following sentence, references in this Agreement to GAAP shall be
to such principles as defined in Section 1.4,
and all accounting terms used herein without definition shall be used as
defined under GAAP.  All references to
Operating Cash Flow, Debt Service and other such terms shall be deemed to refer
to such items of EnergySolutions or Parent and their respective Subsidiaries on
a consolidated basis, consistently applied, unless otherwise indicated herein.


 


Section 11.7                                Counterparts.


 


This Agreement
may be executed in any number of counterparts, each of which shall be deemed to
be an original, but all such separate counterparts shall together constitute
but one and the same instrument.


 


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Section 11.8                                Governing
Law and Jurisdiction.


 


(a)                                  THIS
AGREEMENT, ANY NOTES AND ANY LOAN DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN NEW YORK.


 


(b)                                 EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR
ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE
COURT OR FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN NEW YORK
CITY, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
TO WHICH IT IS A PARTY, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT
ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED
BY LAW, IN SUCH FEDERAL COURT.  EACH OF
THE PARTIES HERETO AGREES THAT A FINAL NON-APPEALABLE JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
LAW.  NOTHING IN THIS AGREEMENT SHALL AFFECT
ANY RIGHT THAT ANY PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS IN THE
COURTS OF ANY JURISDICTION.


 


(c)                                  EACH
OF THE PARTIES HERETO IRREVOCABLY AND UN-CONDITIONALLY WAIVES, TO THE FULLEST
EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION THAT IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
TO WHICH IT IS A PARTY IN ANY NEW YORK STATE OR FEDERAL COURT.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT
FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.


 


Section 11.9                                Severability.


 


Any provision
of this Agreement which is prohibited or unenforceable in any jurisdiction
shall be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof in that jurisdiction or
affecting the validity or enforceability of such provision in any other
jurisdiction.


 


Section 11.10                          Interest.


 


(a)                                  In
no event shall the amount of interest due or payable hereunder or under any
Notes exceed the maximum rate of interest allowed by Applicable Law, and in the
event any such payment is inadvertently made by EnergySolutions or inadvertently
received by any Lender, then such excess sum shall be credited as a payment of
principal, unless EnergySolutions shall notify the Administrative Agent or such
Lender in writing that it elects to have such excess returned forthwith.  It is the express intent hereof that
EnergySolutions not pay and the Lenders not receive, directly or indirectly in
any manner 


 


122

















 


whatsoever,
interest in excess of that which may legally be paid by EnergySolutions under Applicable
Law.


 


(b)                                 Notwithstanding
the use by the Lenders of the Base Rate, the Federal Funds Rate and the
Eurodollar Rate as reference rates for the determination of interest on the
Loans, the Lenders shall be under no obligation to obtain funds from any
particular source in order to charge interest to EnergySolutions at interest
rates related to such reference rates.


 


Section 11.11                          Table
of Contents and Headings.


 


The Table of
Contents and the headings of the various subdivisions used in this Agreement are
for convenience only and shall not in any way modify or amend any of the terms
or provisions hereof, nor be used in connection with the interpretation of any
provision hereof.


 


Section 11.12                          Amendment
and Waiver.


 


Neither this
Agreement nor any other Loan Document nor any term hereof or thereof may be
amended orally, nor may any provision hereof or thereof be waived orally but
only by an instrument in writing signed by the Administrative Agent (or, in the
case of Security Documents executed by the Collateral Agent for itself and on
behalf of the Secured Parties, signed by the Collateral Agent and approved by)
and the Majority Lenders and, in the case of an amendment, by EnergySolutions,
except that (a) any amendment or waiver or consent relating to (i) any
delay or extension in the terms of repayment or of the expiration date of any
Commitment or Synthetic Deposit or change in the order of application of repayment
or application in the reduction of any Commitment of the Loans provided in Section 2.4 or Section 2.8 hereof
shall be made only with the written consent by each Lender Party directly
affected thereby, (ii) any reduction in principal, interest (other than as
a result of any waiver in respect of the Default Rate), premium or fees due
hereunder or postponement of the payment thereof shall be made only with the
written consent by each Lender Party directly affected thereby, (iii) the
release of all or substantially all of the Collateral for the Loans shall be
made only with the written consent by each Lender Party, (iv) any waiver
of any Default due to the failure by EnergySolutions to pay any sum due to any
of the Lenders hereunder shall be made only with the written consent by each
Lender Party directly affected thereby, (v) any release of Holdco, Parent or any
material Subsidiary Guarantor from its Guaranty of all or any portion of the
Obligations, except in connection with a merger, sale or other disposition
otherwise permitted hereunder, shall be made only with the written consent by
each Lender Party, (vi) any portion of Section 2.6,
2.8, 2.10,
2.12 or 8.3,  as it relates to the relative priority of payment among the
Obligations or any other provision of this Agreement or any of the other Loan
Documents specifically requiring the consent or approval of each of the Lender
Parties directly affected thereby shall be made only with the written consent
by each Lender Party directly affected thereby, (vii) any amendment of
this Section 11.12, the definition of “Majority
Lenders” or any other change or modification of any of the voting percentage requirements
hereunder shall be made only with the written consent by each Lender Party, (viii) any
amendment that extends the Eurodollar Period beyond six months shall be made
with the consent of each Lender directly affected thereby and (ix) any
amendment, waiver or modification of the prepayment provisions of Section 2.6 or Section 2.8,
or any change in the definitions related thereto, shall be made only with the
written consent by each Lender Party directly affected thereby, (b) any
amendment relating to any increase in any Commitment of any Lender shall be
made only by an instrument in writing signed by such Lender, the Administrative
Agent and EnergySolutions, (c) no amendment, waiver or consent shall,
unless in writing and signed by the Revolving Issuing Bank, in addition to the
Lenders required above, 


 


123

















 


affect the rights or duties
of the Revolving Issuing Bank under this Agreement or any Revolving Letter of Credit
Agreement, (d) no amendment, waiver or consent shall, unless in writing
and signed by the Synthetic Issuing Bank, in addition to the Lenders required
above, affect the rights or duties of the Synthetic Issuing Bank under this
Agreement or any Synthetic Letter of Credit Agreement, (e) the Fee Letter
may be amended or otherwise modified by the parties thereto without the consent
of, or notice to, any other Person and (f) no amendment or modification
that would require the Revolving Lenders to make a Loan or other extension of
credit at a time they otherwise would not be required to do so shall be
effective without the prior written consent of the Majority Revolving
Lenders.  Any amendment to any provision
hereunder governing the rights, obligations or liabilities of the
Administrative Agent in its capacity as such may be made only by an instrument
in writing signed by the Administrative Agent and by each of the Lender Parties.


 


If, in
connection with any proposed change, waiver, discharge or termination of or to
any of the provisions of this Agreement (other than as contemplated by clause (b) above),
and the consent of all Lenders required hereunder would have been obtained but
for any Lender’s failure to consent (such Lender, a “Non-Consenting Lender”)
and the consent of Majority Lenders is obtained but the consent of one or more
of such other Lenders whose consent is required is not obtained, then
EnergySolutions shall have the right, so long as all Non-Consenting Lenders
whose individual consent is required are treated as described in either clause (i) or
(ii) below, to either (i) replace each such Non-Consenting Lender or
Lenders (or, at the option of EnergySolutions if the respective Lender’s
consent is required with respect to less than all Loans (or related Commitments
or Synthetic Deposits), to replace only the Commitments, Synthetic Deposits
and/or Loans of the respective Non-Consenting Lender that gave rise to the need
to obtain such Lender’s individual consent) with one or more assignees pursuant
to, and with the effect of an assignment under, Section 10.3
so long as at the time of such replacement, each such assignee consents to the
proposed change, waiver, discharge or termination or (ii) terminate such
Non-Consenting Lender’s Commitment (if such Lender’s consent is required as a
result of its Commitment) and/or repay all outstanding Loans or refund the
Synthetic Deposit of such Lender that gave rise to the need to obtain such
Lender’s consent in accordance with this Agreement; provided that,
unless the Commitments that are terminated, Loans that are repaid and Synthetic
Deposit that is refunded pursuant to the preceding clause (ii) are immediately
replaced in full at such time through the addition of new Lenders or the
increase of the Commitments and/or outstanding Loans of existing Lenders (who
in each case must specifically consent thereto), then in the case of any action
pursuant to the preceding clause (ii), the Majority Lenders (determined after
giving effect to the proposed action) shall specifically consent thereto.  In addition, any waiver, amendment or
modification of this Agreement that by its terms affects the rights or duties
under this Agreement of the Revolving Lenders (but not the Term Lenders or
Synthetic Lenders) or the Term Lenders (but not the Revolving Lenders or
Synthetic Lenders) or the Synthetic Lenders (but not the Term Lenders or the
Revolving Lenders) may be effected by an agreement or agreements in writing
entered into by EnergySolutions and the requisite percentage in interest of the
affected class of Lenders that would be required to consent thereto under this Section 11.12 if such Lenders were the only Lenders
hereunder at the time; provided  further that EnergySolutions
shall pay to any Non-Consenting Lender any premium that would be payable in the
event of a prepayment on such date.


 


Section 11.13                          Entire
Agreement.


 


Except as
otherwise expressly provided herein, this Agreement and the other documents described
or contemplated herein embody the entire agreement and understanding among the
parties hereto 


 


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and thereto
and supersede all prior agreements and understandings relating to the subject
matter hereof and thereof.


 


Section 11.14                          Other
Relationships.


 


No
relationship created hereunder or under any other Loan Document shall in any
way affect the ability of the Administrative Agent or its Affiliates and each
Lender Party or its respective Affiliates to enter into or maintain business
relationships with EnergySolutions or any of its Affiliates beyond the relationships
specifically contemplated by this Agreement and the other Loan Documents.


 


Section 11.15                          Directly
or Indirectly.


 


If any
provision in this Agreement refers to any action taken or to be taken by any
Person or which such Person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such Person,
whether or not expressly specified in such provision.


 


Section 11.16                          Reliance
on and Survival of Various Provisions.


 


All covenants,
agreements, statements, representations and warranties made herein or in any certificate
delivered pursuant hereto (a) shall be deemed to have been relied upon by
the Administrative Agent and each of the Lender Parties notwithstanding any
investigation heretofore or hereafter made by them and (b) shall survive
the execution and delivery of this Agreement and shall continue in full force
and effect so long as any Obligation is outstanding and unpaid.  Any right to indemnification hereunder,
including, without limitation, rights pursuant to Sections
2.11, 2.13, 2.14,
5.11, 9.11,
10.3 and 11.2
hereof, shall survive the termination of this Agreement and the payment and
performance of all other Obligations.


 


Section 11.17                          Senior
Debt.


 


The
Indebtedness of EnergySolutions evidenced by this Agreement is secured by the
Security Documents and is intended by the parties hereto to be in parity with
the Secured Hedge Agreements in effect from time to time (with respect to
Secured Obligations under Secured Hedge Agreements) and senior in right of
payment to any other Investors of EnergySolutions.


 


Section 11.18                          Obligations
Several.


 


The
obligations of the Administrative Agent and each of the Lender Parties
hereunder are several, not joint.


 


Section 11.19                          Confidentiality.


 


The Lender
Parties shall hold all information which has been identified as non-public,
proprietary or confidential by EnergySolutions obtained pursuant to the
requirements of this Agreement in accordance with their customary procedures
for handling confidential information of this nature and in accordance with
safe and sound financial service industry practices; provided, however,
that the Lender Parties may make disclosure of any such information (a) to
their examiners, Affiliates, outside auditors, counsel, consultants, appraisers
and other professional advisors in connection with this Agreement; (b) to
any pledgee referred to in Section 11.5(d) or
any direct or indirect contractual counterparty in swap agreements 


 


125

















 


or such
contractual counterparty’s professional advisor (so long as such pledgee,
contractual counterparty or professional advisor to such contractual
counterparty agrees to be bound by the provisions of this Section 11.19);
(c) to the National Association of Insurance Commissioners or any similar
organization or any nationally recognized rating agency that requires access to
information about a Lender Party’s investment portfolio in connection with
ratings issued with respect to such Lender Party; (d) as reasonably
required by any proposed syndicate member or any proposed transferee or
participant in connection with the contemplated transfer of any Loans or
participation therein (so long as such proposed syndicate member or proposed
transferee or participant agrees to be bound by the provisions of this Section 11.19); (e) as required or requested by
any governmental authority or representative thereof; (f) in connection
with the exercise of any right or remedy under this Agreement, the Secured
Hedge Agreements, any other Loan Document or related document; (g) as
required by any law, rule, regulation or judicial process; or (h) with respect
to any litigation to which any Loan Party, any Agent, any Lender Party or any
of their Affiliates is a party.  In no
event shall any Lender Party be obligated or required to return any materials
furnished to it by EnergySolutions.  The
foregoing provisions shall not apply to a Lender Party with respect to information
that (i) is or becomes generally available to the public (other than
through a breach of this Section 11.19
by such Lender Party), (ii) is already in the possession of such Lender
Party on a nonconfidential basis, or (iii) comes into the possession of
such Lender Party in a manner not known to such Lender Party to involve a
breach of a duty of confidentiality owing to EnergySolutions.


 


Section 11.20                          No
Liability of the Issuing Banks.


 


EnergySolutions
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit.  Neither the Issuing Banks nor any of their
officers or directors shall be liable or responsible for (a) the use that
may be made of any Letter of Credit or any acts or omissions of any beneficiary
or transferee in connection therewith; (b) the validity, sufficiency or
genuineness of documents, or of any endorsement thereon, even if such documents
should prove to be in any or all respects invalid, insufficient, fraudulent or
forged; (c) payment by either Issuing Banks against presentation of
documents that do not comply with the terms of a Letter of Credit, including
failure of any documents to bear any reference or adequate reference to the
Letter of Credit; or (d) any other circumstances whatsoever in making or
failing to make payment under any Letter of Credit, except that EnergySolutions
shall have a claim against the Issuing Banks, and the Issuing Banks shall be
liable to EnergySolutions, to the extent of any direct, but not consequential,
damages suffered by EnergySolutions that EnergySolutions proves were caused by (i) the
Issuing Banks’ willful misconduct, gross negligence or breach of any Loan
Document as determined in a final, non-appealable judgment by a court of competent
jurisdiction in determining whether documents presented under any Letter of
Credit comply with the terms of the Letter of Credit or (ii) the Issuing
Banks’ willful failure to make lawful payment under a Letter of Credit after
the presentation to it of a draft and certificates strictly complying with the
terms and conditions of the Letter of Credit. 
In furtherance and not in limitation of the foregoing, the Issuing Banks
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary.


 


Section 11.21                          Patriot
Act Notice.


 


Each Lender
Party and the Administrative Agent (for itself and not on behalf of any Lender
Party) hereby notifies the Loan Parties that pursuant to the requirements of
the Patriot Act, it is required to obtain, verify and record information that
identifies each Loan Party, which information includes the 


 


126

















 


name and
address of such Loan Party and other information that will allow such Lender
Party or the Administrative Agent, as applicable, to identify such Loan Party
in accordance with the Patriot Act.  EnergySolutions
shall, and shall cause each of its Subsidiaries to, provide, to the extent commercially
reasonable, such information and take such actions as are reasonably requested
by the Administrative Agent or any Lender Parties in order to assist the
Administrative Agent and the Lenders in maintaining compliance with the Patriot
Act.


 


Section 11.22                          Performance.


 


If any
performance (other than 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.


 


Section 11.23                          The
Platform.


 


EnergySolutions
hereby agrees that it will provide to the Administrative Agent all information,
documents and other materials that it is obligated to furnish to the
Administrative Agent pursuant to the Loan Documents, including, without
limitation, all notices, requests, financial statements, financial and other
reports, certificates and other information materials, but excluding any such
communication that (i) relates to a request for a new, or a conversion of
an existing, borrowing or other extension of credit (including any election of
an interest rate or interest period relating thereto), (ii) relates to the
payment of any principal or other amount due under this Agreement prior to the
scheduled date therefor, (iii) provides notice of any default or event of
default under this Agreement or (iv) is required to be delivered to
satisfy any condition precedent to the effectiveness of this Agreement and/or
any borrowing or other extension of credit thereunder (all such non-excluded
communications being referred to herein collectively as “Communications”),
by transmitting the Communications in an electronic/soft medium in a format
acceptable to the Administrative Agent to oploanswebadmin@citigroup.com.  In addition, EnergySolutions agrees to
continue to provide the Communications to the Administrative Agent in the
manner specified in the Loan Documents but only to the extent requested by the
Administrative Agent.


 


EnergySolutions
further agrees that the Administrative Agent may make the Communications
available to the Lenders by posting the Communications on Intralinks or a
substantially similar electronic transmission systems (the “Platform”).


 


THE PLATFORM IS
PROVIDED “AS IS” AND “AS AVAILABLE.”  THE
AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF
THE COMMUNICATIONS, OR THE ADEQUACY OF THE PLATFORM AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM
FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE AGENT PARTIES IN CONNECTION
WITH THE COMMUNICATIONS OR THE PLATFORM. 
IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES OR
ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR
REPRESENTATIVES (COLLECTIVELY, “AGENT PARTIES”) HAVE ANY LIABILITY TO
ENERGYSOLUTIONS, 


 


127

















 


ANY LENDER
OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT
LIMITATION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF
ENERGYSOLUTIONS’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS
THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY AGENT PARTY IS
FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION
TO HAVE RESULTED PRIMARILY FROM SUCH AGENT PARTY’S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.


 


The
Administrative Agent agrees that the receipt of the Communications by the
Administrative Agent at its e-mail address set forth above shall constitute
effective delivery of the Communications to the Agent for purposes of the Loan
Documents.  Each Lender agrees that
notice to it (as provided in the next sentence) specifying that the
Communications have been posted to the Platform shall constitute effective
delivery of the Communications to such Lender for purposes of the Loan
Documents.  Each Lender agrees to notify
the Administrative Agent in writing (including by electronic communication)
from time to time of such Lender’s e-mail address to which the foregoing notice
may be sent by electronic transmission and (ii) that the foregoing notice
may be sent to such e-mail address.


 


Nothing herein
shall prejudice the right of the Administrative Agent or any Lender to give any
notice or other communication pursuant to any Loan Document in any other manner
specified in such Loan Document.


 


Section 11.24                          Conversion
of Currencies.


 


(i)                                     If,
for the purpose of obtaining judgment in any court, it is necessary to convert
a sum owing hereunder in one currency into another currency, each party hereto
agrees, to the fullest extent that it may effectively do so, that the rate of
exchange used shall be that at which in accordance with normal banking
procedures in the relevant jurisdiction the first currency could be purchased
with such other currency on the Business Day immediately preceding the day on
which final judgment is given.


 


(ii)                                  The
obligations of EnergySolutions in respect of any sum due to any party hereto or
any holder of the obligations owing hereunder (the “Applicable Creditor”)
shall, notwithstanding any judgment in a currency (the “Judgment Currency”)
other than the currency in which such sum is stated to be due hereunder (the “Agreement
Currency”), be discharged only to the extent that, on the Business Day
following receipt by the Applicable Creditor of any sum adjudged to be so due
in the Judgment Currency, the Applicable Creditor may in accordance with normal
banking procedures in the relevant jurisdiction purchase the Agreement Currency
with the Judgment Currency; if the amount of the Agreement Currency so purchased
is less than the sum originally due to the Applicable Creditor in the Agreement
Currency, EnergySolutions agrees, as a separate obligation and notwithstanding
any such judgment, to indemnify the Applicable Creditor against such loss.  The obligations of EnergySolutions contained
in this Section 11.24 shall survive the
termination of this Agreement and the payment of all other amounts owing hereunder.


 


(iii)                               For
purposes of this Agreement, the Dollar Equivalent of the Available Amount of
any Letter of Credit shall be calculated on the date when such Letter of Credit
is issued, on the first Business Day of each month and at such other times as
designated by the Administrative Agent. 
Such Dollar Equivalent shall remain in effect until the same is
recalculated by the Administrative Agent as provided 


 


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above and notice of such recalculation is
received by EnergySolutions, it being understood that until such notice is
received, the Dollar Equivalent shall be as last reported by the Administrative
Agent to EnergySolutions.  The
Administrative Agent shall promptly notify EnergySolutions of each such determination
of Dollar Equivalents.


 


ARTICLE 12.


 


Waiver of Jury Trial


 


Section 12.1                                Waiver
of Jury Trial.


 


EACH PARTY
HERETO IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF
OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE LOANS, THE LETTERS OF CREDIT OR
THE ACTIONS OF ANY AGENT OR ANY LENDER PARTY IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.


 


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EXHIBIT S


 


Each undersigned Loan Party hereby expressly
acknowledges the terms of the Third Amended and Restated Credit Agreement and (i) ratifies
and affirms its obligations under the Loan Documents executed by such Loan
Party, (ii) acknowledges, renews and extends its continued liability under
all such Loan Documents and agrees such Loan Documents remain in full force and
effect and (iii) agrees that the Security Documents secure all obligations
of the Loan Parties under the Third Amended and Restated Credit Agreement and
other Loan Documents.


 


	
   

  	
   

  	
  THE LOAN PARTIES:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title: