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