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EXHIBIT 10.46
EXECUTION
THE OBLIGATIONS OF USEC INC. UNDER THIS AMENDED AND RESTATED REVOLVING LOAN
AGREEMENT ARE NOT OBLIGATIONS OF, AND ARE NOT GUARANTEED AS TO PRINCIPAL,
INTEREST OR ANY OTHER AMOUNT BY, THE UNITED STATES OF AMERICA.
AMENDED AND RESTATED REVOLVING LOAN AGREEMENT
Dated as of July 21, 2000
among
USEC INC.
THE LENDERS HEREIN NAMED
FIRST UNION NATIONAL BANK
as Syndication Agent
WACHOVIA BANK, NATIONAL ASSOCIATION
as Documentation Agent
BANK OF AMERICA, N.A.
as Administrative Agent
and
BANC OF AMERICA SECURITIES LLC
as Lead Arranger
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TABLE OF CONTENTS
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Article 1
DEFINITIONS AND ACCOUNTING TERMS.........................................1
1.1 Defined Terms......................................................1
1.2 Use of Defined Terms..............................................17
1.3 Accounting Terms..................................................17
1.4 Rounding..........................................................1
1.5 Exhibits and Schedules............................................18
1.6 References to "Borrower and its Subsidiaries".....................28
1.7 Miscellaneous Terms...............................................28
Article 2
LOANS...................................................................19
2.1 Loans-General.....................................................19
2.2 Base Rate Loans...................................................20
2.3 Eurodollar Rate Loans.............................................20
2.4 [Intentionally Omitted]...........................................20
2.5 [Intentionally Omitted]...........................................20
2.6 Voluntary Reduction of Commitment.................................20
2.7 [Intentionally Omitted]...........................................20
2.8 Optional Termination of Commitment................................20
2.9 Administrative Agent's Right to Assume Funds Available for
Advances..........................................................21
2.10 Guaranty..........................................................21
2.11 Adjusting Purchase Payments.......................................21
Article 3
PAYMENTS AND FEES.......................................................22
3.1 Principal and Interest............................................22
3.2 Arranger and Agency Fees..........................................23
3.3 Facility Fee......................................................23
3.4 Utilization Fee...................................................23
3.5 [Intentionally Omitted]...........................................23
3.6 [Intentionally Omitted]...........................................23
3.7 Increased Commitment Costs........................................23
3.8 Eurodollar Costs and Related Matters..............................24
3.9 Late Payments.....................................................27
3.10 Computation of Interest and Fees..................................27
3.11 Non-Banking Days..................................................27
3.12 Manner and Treatment of Payments..................................27
3.13 Funding Sources...................................................29
3.14 Failure to Charge Not Subsequent Waiver...........................29
3.15 Administrative Agent's Right to Assume Payments Will be Made......29
3.16 Fee Determination Detail..........................................29
3.17 Survivability.....................................................29
3.18 Substitution of Lender............................................30
3.19 Accruals Under Pre-Existing Loan Documents........................30
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Article 4
REPRESENTATIONS AND WARRANTIES..........................................31
4.1 Existence and Qualification; Power; Compliance With Laws..........31
4.2 Authority; Compliance With Other Agreements and Instruments and
Government Regulations............................................31
4.3 No Governmental Approvals Required................................32
4.4 Subsidiaries......................................................32
4.5 Financial Statements..............................................32
4.6 No Other Liabilities; No Material Adverse Changes.................33
4.7 Title to and Location of Property.................................33
4.8 Intellectual Property.............................................33
4.9 Public Utility Holding Company Act................................33
4.10 Litigation........................................................33
4.11 Binding Obligations...............................................33
4.12 No Default........................................................33
4.13 ERISA.............................................................34
4.14 Regulation U; Investment Company Act..............................34
4.15 Disclosure........................................................34
4.16 Tax Liability.....................................................34
4.17 [Intentionally Omitted]...........................................34
4.18 Hazardous Materials...............................................35
4.19 Solvency..........................................................35
4.20 [Intentionally Omitted]...........................................35
4.21 [Intentionally Omitted]...........................................35
4.22 [Intentionally Omitted]...........................................35
Article 5
AFFIRMATIVE COVENANTS(OTHER THAN INFORMATION AND REPORTING
REQUIREMENTS)...........................................................36
5.1 Payment of Taxes and Other Potential Liens........................36
5.2 Preservation of Existence.........................................36
5.3 Maintenance of Properties.........................................36
5.4 Maintenance of Insurance..........................................36
5.5 Compliance With Laws..............................................36
5.6 Inspection Rights.................................................36
5.7 Keeping of Records and Books of Account...........................37
5.8 Compliance With Agreements........................................37
5.9 Use of Proceeds...................................................37
5.10 Hazardous Materials Laws..........................................37
5.11 Future Subsidiaries...............................................37
Article 6
NEGATIVE COVENANTS......................................................38
6.1 Disposition of Property...........................................38
6.2 Mergers...........................................................38
6.3 Hostile Acquisitions..............................................38
6.4 Distributions.....................................................38
6.5 ERISA.............................................................38
6.6 Change in Nature of Business......................................39
6.7 Liens and Negative Pledges........................................39
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6.8 Transactions with Affiliates......................................39
6.9 Stockholders' Equity..............................................39
6.10 Capitalization Ratio..............................................39
6.11 Investments.......................................................39
6.12 Subsidiary Indebtedness...........................................40
Article 7
INFORMATION AND REPORTING REQUIREMENTS..................................41
7.1 Financial and Business Information................................41
7.2 Compliance Certificates...........................................42
Article 8
CONDITIONS..............................................................43
8.1 Initial Advances..................................................43
8.2 Any Advance.......................................................44
8.3 Return of Pre-Existing Notes......................................45
Article 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT....................46
9.1 Events of Default.................................................46
9.2 Remedies Upon Event of Default....................................48
Article 10
THE ADMINISTRATIVE AGENT................................................50
10.1 Appointment and Authorization.....................................50
10.2 Administrative Agent and Affiliates...............................50
10.3 Proportionate Interest in any Collateral..........................50
10.4 Lenders' Credit Decisions.........................................50
10.5 Action by Administrative Agent....................................51
10.6 Liability of Administrative Agent.................................51
10.7 Indemnification...................................................52
10.8 Successor Administrative Agent....................................53
10.9 No Obligations of Borrower........................................53
Article 11
MISCELLANEOUS...........................................................54
11.1 Cumulative Remedies; No Waiver....................................54
11.2 Amendments; Consents..............................................54
11.3 Costs, Expenses and Taxes.........................................55
11.4 Nature of Lenders' Obligations....................................55
11.5 Survival of Representations and Warranties........................55
11.6 Notices...........................................................55
11.7 Execution of Loan Documents.......................................56
11.8 Binding Effect; Assignment........................................56
11.9 Right of Setoff...................................................58
11.10 Sharing of Setoffs................................................58
11.11 Indemnity by Borrower.............................................59
11.12 Nonliability of the Lenders.......................................60
11.13 No Third Parties Benefitted.......................................60
11.14 Confidentiality...................................................61
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11.15 Further Assurances................................................61
11.16 Integration.......................................................61
11.17 Governing Law.....................................................61
11.18 Severability of Provisions........................................61
11.19 Headings..........................................................62
11.20 Time of the Essence...............................................62
11.21 Foreign Lenders and Participants..................................62
11.22 Hazardous Material Indemnity......................................62
11.23 Waiver of Right to Trial by Jury..................................63
11.24 Purported Oral Amendments.........................................63
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Exhibits
A - Commitment Assignment and Acceptance
B - Compliance Certificate
C - Note
D - Opinion of Counsel
E - Request for Loan
F - Subsidiary Guaranty
Schedules
1.1 Lender Commitments
2.11 Adjusting Purchase Payment(s)
4.4(a) Subsidiaries
4.4(c) Compliance With Laws
4.6 Material Adverse Changes
4.7 Existing Liens, Negative Pledges and Rights of Others
4.8 Intellectual Property Matters
4.10 Material Litigation
4.18 Hazardous Materials Matters
6.11 Existing Investments
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THE OBLIGATIONS OF USEC INC. UNDER THIS AMENDED AND RESTATED REVOLVING LOAN
AGREEMENT ARE NOT OBLIGATIONS OF, AND ARE NOT GUARANTEED AS TO PRINCIPAL,
INTEREST OR ANY OTHER AMOUNT BY, THE UNITED STATES OF AMERICA.
AMENDED AND RESTATED REVOLVING LOAN AGREEMENT
Dated as of July 21, 2000
This AMENDED AND RESTATED REVOLVING LOAN AGREEMENT ("Agreement") is
entered into by and among USEC Inc., a Delaware corporation ("Borrower"),
each lender whose name is set forth on the signature pages of this
Agreement and each lender which may hereafter become a party to this
Agreement pursuant to Section 11.8 (collectively, the "Lenders" and
individually, a "Lender"), First Union National Bank, as Syndication
Agent, Wachovia Bank, National Association, as Documentation Agent, Bank
of America, N.A., as Administrative Agent, and Banc of America Securities
LLC, as Lead Arranger.
This Agreement is intended by the parties hereto as an amendment and
restatement of the Original Loan Agreement as of the effective date of
this Agreement. Amounts outstanding and committed under the Original Loan
Agreement and evidenced by the Pre-Existing Notes shall, upon the
effectiveness of this Agreement, be deemed to be outstanding and committed
hereunder and evidenced by the Notes, subject, however, to all terms and
conditions hereunder and under the other Loan Documents, including without
limitation the allocation of the Commitment among the Lenders as provided
herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
Article 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Adjusting Purchase Payment(s)" has the meaning given that term in
Section 2.11.
"Administrative Agent" means Bank of America, N. A. when acting
in its capacity as the Administrative Agent under any of the Loan
Documents, or any successor Administrative Agent.
"Administrative Agent's Office" means the Administrative Agent's
address as set forth on the signature pages of this Agreement, or such
other address as the Administrative Agent hereafter may designate by
written notice to Borrower and the Lenders.
"Advance" means any advance made or to be made by any Lender to
Borrower as provided in Article 2, and includes each Base Rate Advance and
Eurodollar Rate Advance.
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"Affiliate" means, as to any Person, any other Person which
directly or indirectly controls, or is under common control with, or is
controlled by, such Person. As used in this definition, "control" (and
the correlative terms, "controlled by" and "under common control with")
shall mean possession, directly or indirectly, of power to direct or
cause the direction of management or policies (whether through
ownership of securities or partnership or other ownership interests, by
contract or otherwise); provided that, in any event, any Person that
owns, directly or indirectly, 10% or more of the securities having
ordinary voting power for the election of directors or other governing
body of a corporation that has more than 100 record holders of such
securities, or 10% or more of the partnership or other ownership
interests of any other Person that has more than 100 record holders of
such interests, will be deemed to be an Affiliate of such corporation,
partnership or other Person.
"Agreement" means this Amended and Restated Revolving Loan
Agreement, either as originally executed or as it may from time to time
be supplemented, modified, amended, restated or extended.
"Applicable Eurodollar Margin" means, during the continuance of
any Applicable Pricing Level, the interest rate margin set forth below
(expressed in basis points per annum) opposite that Applicable Pricing
Level:
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Applicable
Pricing Level Margin
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I 80.0
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II 100.0
--------------------------------
III 120.0
--------------------------------
IV 137.5
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V 155.0
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"Applicable Facility Fee Rate" means, during the continuance of
any Applicable Pricing Level, the rate set forth below (expressed in
basis points per annum) opposite that Applicable Pricing Level:
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Applicable
Pricing Level Rate
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I 20.0
--------------------------------
II 25.0
--------------------------------
III 30.0
--------------------------------
IV 37.5
--------------------------------
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Applicable
Pricing Level Rate
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V 45.0
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"Applicable Pricing Level" means the pricing level set forth below
opposite the credit rating then given to Borrower's long-term senior
unsecured debt which is not the beneficiary of any external credit
enhancement by Standard & Poor's Rating Group (a division of McGraw-Hill,
Inc.) ("S&P") and Moody's Investors Service, Inc. ("Moody's"), provided
that if either or both S&P and Moody's have rated Borrower's Obligations
to the Lenders under this Agreement, such rating(s) shall be used instead:
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Applicable Credit Rating
Pricing Level (S&P/Moody's)
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I BBB/Baa2 or higher
II BBB-/Baa3
III BB+/Ba1
IV BB/Ba2
V BB-/Ba3 or lower
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The following convention shall apply with respect to the foregoing: the
lower of such credit ratings shall be used to determine the Applicable
Pricing Level unless such credit ratings are split by more than one level,
in which case the credit rating that is one level higher than the lower of
the two credit ratings shall be used to determine the Applicable Pricing
Level.
"Bank of America" means Bank of America, N.A., as a Lender.
"Banking Day" means any Monday, Tuesday, Wednesday, Thursday or
Friday, other than a day on which banks are authorized or required to be
closed in California, New York, or North Carolina.
"Base Rate" means the higher of (a) the Prime Rate and (b) one-half
percent per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance made hereunder and specified to
be an Base Rate Advance in accordance with Article 2.
"Base Rate Loan" means a Loan made hereunder and specified to be an
Base Rate Loan in accordance with Article 2.
"Borrower" means USEC Inc., a Delaware corporation, and its
successors.
"Capital Lease Obligations" means all monetary obligations of a
Person under any leasing or similar arrangement which, in accordance with
GAAP, is classified as a capital lease.
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"Cash" means, when used in connection with any Person, all monetary
and non-monetary items owned by that Person that are treated as cash in
accordance with GAAP, consistently applied.
"Cash Equivalents" means, when used in connection with any
Person, that Person's Investments in:
(a) Government Securities due within one year after the date
of the making of the Investment;
(b) readily marketable direct obligations of any State of the
United States of America or any political subdivision of any such State
or any public agency or instrumentality thereof given on the date of such
Investment a credit rating of at least A3 by Moody's Investors Service,
Inc. or A- by Standard & Poor's Rating Group (a division of McGraw-Hill,
Inc.), in each case due within one year from the making of the
Investment;
(c) certificates of deposit issued by, bank deposits in,
Eurodollar deposits through, bankers' acceptances of, and repurchase
agreements covering Government Securities executed by any Lender or any
bank incorporated under the Laws of the United States of America, any
State thereof or the District of Columbia and having on the date of such
Investment combined capital, surplus and undivided profits of at least
$250,000,000, or total assets of at least $5,000,000,000, in each case
due within one year after the date of the making of the Investment;
(d) certificates of deposit issued by, bank deposits in,
Eurodollar deposits through, bankers' acceptances of, and repurchase
agreements covering Government Securities executed by any Lender or any
branch or office located in the United States of America of a bank
incorporated under the Laws of any jurisdiction outside the United States
of America having on the date of such Investment combined capital,
surplus and undivided profits of at least $500,000,000, or total assets
of at least $15,000,000,000, in each case due within one year after the
date of the making of the Investment;
(e) repurchase agreements covering Government Securities
executed by a broker or dealer registered under Section 15(b) of the
Securities Exchange Act of 1934, as amended, having on the date of the
Investment capital of at least $50,000,000, due within 90 days after the
date of the making of the Investment; provided that the maker of the
Investment receives written confirmation of the transfer to it of record
ownership of the Government Securities on the books of a "primary dealer"
in such Government Securities or on the books of such registered broker
or dealer, as soon as practicable after the making of the Investment;
(f) readily marketable commercial paper or other debt
securities issued by corporations doing business in and incorporated
under the Laws of the United States of America or any State thereof or of
any corporation that is the holding company for a bank described in
clause (c) or (d) above given on the date of such Investment a credit
rating of at least P-2 by Moody's Investors Service, Inc. or A-2 by
Standard & Poor's Rating Group (a division of McGraw-Hill, Inc.), in each
case due within one year after the date of the making of the Investment;
(g) "money market preferred stock" issued by a corporation
incorporated under the Laws of the United States of America or any State
thereof (i) given on the date of such Investment a credit rating of at
least A3 by Moody's Investors Service, Inc. and A- by Standard & Poor's
Rating Group (a division of McGraw-Hill, Inc.), in each case having an
investment period not exceeding 50 days or (ii) to the extent that
investors therein have the benefit of a standby letter of credit issued
by
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a Lender or a bank described in clauses (c) or (d) above; provided that
(y) the amount of all such Investments issued by the same issuer does not
exceed $5,000,000 and (z) the aggregate amount of all such Investments
does not exceed $15,000,000;
(h) a readily redeemable "money market mutual fund" sponsored
by a bank described in clause (c) or (d) hereof, or a registered broker
or dealer described in clause (e) hereof, that has and maintains an
investment policy limiting its investments primarily to instruments of
the types described in clauses (a) through (g) hereof and given on the
date of such Investment a credit rating of at least A3 by Moody's
Investors Service, Inc. and A- by Standard & Poor's Rating Group (a
division of McGraw-Hill, Inc.); and
(i) corporate notes or bonds having an original term to
maturity of not more than one year issued by a corporation incorporated
under the Laws of the United States of America, or a participation
interest therein; provided that (i) commercial paper issued by such
corporation is given on the date of such Investment a credit rating of at
least P2 by Moody's Investors Service, Inc. and A2 by Standard & Poor's
Rating Group (a division of McGraw-Hill, Inc.), (ii) the amount of all
such Investments issued by the same issuer does not exceed $5,000,000 and
(iii) the aggregate amount of all such Investments does not exceed
$15,000,000.
"Certificate" means a certificate signed by a Senior Officer or
Responsible Official (as applicable) of the Person providing the
certificate.
"Change in Control" means (a) any transaction or series of related
transactions in which any Unrelated Person or two or more Unrelated
Persons acting in concert acquire beneficial ownership (within the meaning
of Rule 13d-3(a)(1) under the Securities Exchange Act of 1934, as
amended), directly or indirectly, of 35% or more of the outstanding Common
Stock, (b) Borrower consolidates with or merges into another Person or
conveys, transfers or leases its properties and assets substantially as an
entirety to any Person or any Person consolidates with or merges into
Borrower, in either event pursuant to a transaction in which the
outstanding Common Stock is changed into or exchanged for cash, securities
or other property, with the effect that any Unrelated Person becomes the
beneficial owner, directly or indirectly, of 35% or more of Common Stock
or that the Persons who were the holders of Common Stock immediately prior
to the transaction hold less than 65% of the common stock of the surviving
corporation after the transaction, (c) during any period of 24 consecutive
months, individuals who at the beginning of such period constituted the
board of directors of Borrower (together with any new or replacement
directors whose election by the board of directors, or whose nomination
for election, was approved by a vote of at least a majority of the
directors then still in office who were either directors at the beginning
of such period or whose election or nomination for reelection was
previously so approved) cease for any reason to constitute a majority of
the directors then in office or (d) a "change in control" as defined in
any document governing Indebtedness of Borrower in excess of $10,000,000
which gives the holders of such Indebtedness the right to accelerate or
otherwise require payment of such Indebtedness prior to the maturity date
thereof. For purposes of the foregoing, the term "Unrelated Person" means
any Person other than (i) a Subsidiary of Borrower or (ii) an employee
stock ownership plan or other employee benefit plan covering the employees
of Borrower and its Subsidiaries.
"Closing Date" means the time and Banking Day on which the
conditions set forth in Section 8.1 are satisfied or waived. The
Administrative Agent shall notify Borrower and the Lenders of the date
that is the Closing Date.
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"Code" means the Internal Revenue Code of 1986, as amended or
replaced and as in effect from time to time.
"Commitment" means, subject to Section 2.6, $115,000,000. The
respective Pro Rata Shares of the Lenders with respect to the Commitment
are set forth in Schedule 1.1.
"Commitment Assignment and Acceptance" means a commitment assignment
and acceptance substantially in the form of Exhibit A.
"Common Stock" means the common stock of Borrower or its successor.
"Compliance Certificate" means a certificate in the form of Exhibit
B, properly completed and signed by a Senior Officer of Borrower.
"Contractual Obligation" means, as to any Person, any provision of
any outstanding security issued by that Person or of any material
agreement, instrument or undertaking to which that Person is a party or by
which it or any of its Property is bound.
"Debtor Relief Laws" means the Bankruptcy Code of the United States
of America, as amended from time to time, and all other applicable
liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief Laws
from time to time in effect affecting the rights of creditors generally.
"Default" means any event that, with the giving of any applicable
notice or passage of time specified in Section 9.1, or both, would be an
Event of Default.
"Default Rate" means the interest rate prescribed in Section 3.9.
"Designated Eurodollar Market" means the Eurodollar Market in
London, England.
"Disposition" means the sale, transfer or other disposition in any
single transaction or series of related transactions of any asset, or
group of related assets, of Borrower or any of its Subsidiaries (a) which
asset or assets constitute an entire segment of business or substantially
all the assets of Borrower or (b) the aggregate amount of the Net Cash
Sales Proceeds of such assets is more than $2,000,000, other than (i)
Cash, Cash Equivalents, inventory or other assets sold or otherwise
disposed of in the ordinary course of business of Borrower or its
Subsidiary, (ii) assets sold or otherwise disposed of where substantially
similar assets in replacement thereof have theretofore been acquired, or
thereafter within six (6) months are acquired, by Borrower or its
Subsidiary and (iii) obsolete assets no longer useful in the business of
Borrower and its Subsidiaries.
"Disqualified Stock" means any capital stock, warrants, options or
other rights to acquire capital stock (but excluding any debt security
which is convertible, or exchangeable, for capital stock), which, by its
terms (or by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event, matures or
is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder thereof, in whole
or in part, on or prior to the Maturity Date.
"Distribution" means, with respect to any shares of capital stock or
any warrant or option to purchase an equity security or other equity
security issued by a Person, (a) the retirement, redemption,
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purchase or other acquisition for Cash or for Property by such Person of
any such security, (b) the declaration or (without duplication) payment by
such Person of any dividend in Cash or in Property on or with respect to
any such security, (c) any Investment by such Person in the holder of 5%
or more of any such security if a purpose of such Investment is to avoid
characterization of the transaction as a Distribution and (d) any other
payment in Cash or Property by such Person constituting a distribution
under applicable Laws with respect to such security.
"Documentation Agent" means Wachovia Bank, National Association. The
Documentation Agent shall have no rights, duties, allegations or
responsibilities beyond those of a Lender.
"Dollars" or "$" means United States of America dollars.
"Eligible Assignee" means (a) another Lender, (b) with respect to
any Lender, any Affiliate of that Lender, (c) any commercial bank having
total assets of $10,000,000,000 or more, (d) any (i) savings bank, savings
and loan association or similar financial institution or (ii) insurance
company engaged in the business of writing insurance which, in either case
(A) has total assets of $10,000,000,000 or more, (B) is engaged in the
business of lending money and extending credit under credit facilities
substantially similar to those extended under this Agreement and (C) is
operationally and procedurally able to meet the obligations of a Lender
hereunder to the same degree as a commercial bank and (e) any other
financial institution (including a mutual fund or other fund) having total
assets of $10,000,000,000 or more which meets the requirements set forth
in subclauses (B) and (C) of clause (d) above; provided that each Eligible
Assignee must either (aa) be organized under the Laws of the United States
of America, any State thereof or the District of Columbia or (bb) be
organized under the Laws of the Cayman Islands or any country which is a
member of the Organization for Economic Cooperation and Development, or a
political subdivision of such a country, and (i) act hereunder through a
branch, agency or funding office located in the United States of America
and (ii) be exempt from withholding of tax on interest and deliver the
documents related thereto pursuant to Section 11.21.
"ERISA" means the Employee Retirement Income Security Act of 1974,
and any regulations issued pursuant thereto, as amended or replaced and as
in effect from time to time.
"ERISA Affiliate" means each Person (whether or not incorporated)
which is required to be aggregated with Borrower pursuant to Section 414
of the Code.
"Eurodollar Banking Day" means any Banking Day on which dealings in
Dollar deposits are conducted by and among banks in the Designated
Eurodollar Market.
"Eurodollar Lending Office" means, as to each Lender, its office or
branch so designated by written notice to Borrower and the Administrative
Agent as its Eurodollar Lending Office. If no Eurodollar Lending Office is
designated by a Lender, its Eurodollar Lending Office shall be its office
at its address for purposes of notices hereunder.
"Eurodollar Market" means a regular established market located
outside the United States of America by and among banks for the
solicitation, offer and acceptance of Dollar deposits in such banks.
"Eurodollar Obligations" means eurocurrency liabilities, as defined
in Regulation D or any comparable regulation of any Governmental Agency
having jurisdiction over any Lender.
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"Eurodollar Period" means, as to each Eurodollar Rate Loan, the
period commencing on the date specified by Borrower pursuant to Section
2.1(c) and ending 1, 2, 3 or 6 months thereafter, as specified by Borrower
in the applicable Request for Loan; provided that:
(a) The first day of any Eurodollar Period shall be a
Eurodollar Banking Day;
(b) Any Eurodollar Period that would otherwise end on a day
that is not a Eurodollar Banking Day shall be extended to the immediately
succeeding Eurodollar Banking Day unless such Eurodollar Banking Day falls
in another calendar month, in which case such Eurodollar Period shall end
on the immediately preceding Eurodollar Banking Day; and
(c) No Eurodollar Period shall extend beyond the Maturity
Date.
"Eurodollar Rate" means, with respect to any Eurodollar Rate
Loan, the average of the interest rates per annum (rounded upward, if
necessary, to the next 1/16 of 1%) at which deposits in Dollars are
offered to the Administrative Agent in the Designated Eurodollar Market at
or about 11:00 a.m. local time in the Designated Eurodollar Market, two
(2) Eurodollar Banking Days before the first day of the applicable
Eurodollar Period in an aggregate amount approximately equal to the amount
of the Advance to be made by the Administrative Agent with respect to such
Eurodollar Rate Loan and for a period of time comparable to the number of
days in the applicable Eurodollar Period.
"Eurodollar Rate Advance" means an Advance made hereunder and
specified to be a Eurodollar Rate Advance in accordance with Article 2.
"Eurodollar Rate Loan" means a Loan made hereunder and specified
to be a Eurodollar Rate Loan in accordance with Article 2.
"Event of Default" shall have the meaning provided in Section
9.1.
"Facility" means the credit facility extended by the Lenders to
Borrower under this Agreement.
"Federal Funds Rate" means, as of any date of determination, the
rate set forth in the weekly statistical release designated as H.15(519),
or any successor publication, published by the Federal Reserve Board
(including any such successor, "H.15(519)") for such date opposite the
caption "Federal Funds (Effective)". If for any relevant date such rate is
not yet published in H.15(519), the rate for such date will be the rate
set forth in the daily statistical release designated as the Composite
3:30 p.m. Quotations for U.S. Government Securities, or any successor
publication, published by the Federal Reserve Lender of New York
(including any such successor, the "Composite 3:30 p.m. Quotation") for
such date under the caption "Federal Funds Effective Rate". If on any
relevant date the appropriate rate for such date is not yet published in
either H.15(519) or the Composite 3:30 p.m. Quotations, the rate for such
date will be the arithmetic mean of the rates for the last transaction in
overnight Federal funds arranged prior to 9:00 a.m. (New York City time)
on that date by each of three leading brokers of Federal funds
transactions in New York City selected by the Administrative Agent. For
purposes of this Agreement, any change in the Base Rate due to a change in
the Federal Funds Rate shall be effective as of the opening of business on
the effective date of such change.
"Fiscal Quarter" means the fiscal quarter of Borrower ending on
each September 30, December 31, March 31 and June 30.
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"Fiscal Year" means the fiscal year of Borrower ending on each June
30.
"GAAP" means, as of any date of determination, accounting principles
(a) set forth as generally accepted in then currently effective Opinions
of the Accounting Principles Board of the American Institute of Certified
Public Accountants, (b) set forth as generally accepted in then currently
effective Statements of the Financial Accounting Standards Board or (c)
that are then approved by such other entity as may be approved by a
significant segment of the accounting profession in the United States of
America. The term "consistently applied," as used in connection therewith,
means that the accounting principles applied are consistent in all
material respects with those applied at prior dates or for prior periods.
"Government Securities" means readily marketable (a) direct full
faith and credit obligations of the United States of America or
obligations guaranteed by the full faith and credit of the United States
of America and (b) obligations of an agency or instrumentality of, or
corporation owned, controlled or sponsored by, the United States of
America that are generally considered in the securities industry to be
implicit obligations of the United States of America.
"Governmental Agency" means (a) any international, foreign, federal,
state, county or municipal government, or political subdivision thereof,
(b) any governmental or quasi-governmental agency, authority, board,
bureau, commission, department, instrumentality or public body or (c) any
court or administrative tribunal of competent jurisdiction.
"Guaranty Obligation" means, as to any Person, any (a) guarantee by
that Person of Indebtedness of any other Person or (b) assurance given by
that Person to a creditor of any other Person with respect to the payment
of Indebtedness by, or the financial condition of, such other Person,
whether direct, indirect or contingent, including any purchase or
repurchase agreement covering such obligation or any collateral security
therefor, any agreement to provide funds (by means of loans, capital
contributions or otherwise) to such other Person, any agreement to support
the solvency or level of any balance sheet item of such other Person or
any "keep-well" or other arrangement of whatever nature given for the
purpose of assuring or holding harmless such obligee against loss with
respect to any obligation of such other Person; provided, however, that
the term Guaranty Obligation shall not include (a) endorsements of
instruments for deposit or collection in the ordinary course of business
or (b) obligations of Borrower or any of its Subsidiaries under electric
power supply contracts in existence on the Reference Date to make minimum
payments to suppliers of electric power in the event that Borrower or its
Subsidiary terminates such a power supply contract. The amount of any
Guaranty Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the related Indebtedness (unless the Guaranty
Obligation is limited by its terms to a lesser amount, in which case to
the extent of such amount) or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the
Person in good faith.
"Hazardous Materials" means substances defined as "hazardous
substances" pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. ' 9601 et seq., or as
"hazardous", "toxic" or "pollutant" substances or as "solid waste"
pursuant to the Hazardous Materials Transportation Act, 49 U.S.C. '
1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. '
6901, et seq., or as "friable asbestos" pursuant to the Toxic
Substances Control Act, 15 U.S.C. ' 2601 et seq. or any other
applicable Hazardous Materials Law, in each case as such Laws are
amended from time to time.
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"Hazardous Materials Laws" means all Laws governing the treatment,
transportation or disposal of Hazardous Materials applicable to any of the
Real Property.
"Inactive Subsidiary" means a Subsidiary of Borrower that holds
total assets of $1,000,000 or less.
"Indebtedness" means, as to any Person (without duplication), (a)
indebtedness of such Person for borrowed money or for the deferred
purchase price of Property (excluding trade and other accounts payable in
the ordinary course of business in accordance with ordinary trade terms),
including any Guaranty Obligation for any such indebtedness, (b)
indebtedness of such Person of the nature described in clause (a) that is
non-recourse to the credit of such Person but is secured by assets of such
Person, to the extent of the fair market value of such assets as
determined in good faith by such Person, (c) Capital Lease Obligations of
such Person, (d) indebtedness of such Person arising under bankers'
acceptance facilities or under facilities for the discount of accounts
receivable of such Person, (e) any direct or contingent obligations of
such Person under letters of credit issued for the account of such Person
and (f) the obligations of such Person under any series of Disqualified
Stock.
"Investment" means, when used in connection with any Person, any
investment by or of that Person, whether by means of purchase or other
acquisition of stock or other securities of any other Person or by means
of a loan, advance creating a debt, capital contribution, guaranty or
other debt or equity participation or interest in any other Person,
including any partnership and joint venture interests of such Person. The
amount of any Investment shall be the amount actually invested (minus any
return of capital with respect to such Investment which has actually been
received in Cash or has been converted into Cash), without adjustment for
subsequent increases or decreases in the value of such Investment.
"Laws" means, collectively, all international, foreign, federal,
state and local statutes, treaties, rules, regulations, ordinances, codes
and administrative or judicial precedents.
"Lead Arranger" means Banc of America Securities LLC.
"Lender" means each lender whose name is set forth in the signature
pages of this Agreement and each lender which may hereafter become a party
to this Agreement pursuant to Section 11.8.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment for security, security interest, encumbrance, lien or charge of
any kind, whether voluntarily incurred or arising by operation of Law or
otherwise, affecting any Property, including any conditional sale or other
title retention agreement, any lease in the nature of a security interest,
and/or the filing of any financing statement (other than a precautionary
financing statement with respect to a lease that is not in the nature of a
security interest) under the Uniform Commercial Code or comparable Law of
any jurisdiction with respect to any Property.
"Loan" means the aggregate of the Advances made at any one time by
the Lenders pursuant to Section 2.1.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Subsidiary Guaranty, and any other agreements of any type or nature
hereafter executed and delivered by Borrower or any of the Subsidiary
Guarantors to the Administrative Agent or to any Lender in any way
relating to or in furtherance of this Agreement, in each case either as
originally executed or as the same may from time
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<PAGE> 16
to time be supplemented, modified, amended, restated, extended or
supplanted.
"Margin Stock" means "margin stock" as such term is defined in
Regulation U.
"Material Adverse Effect" means any set of circumstances or events
which (a) has had or could reasonably be expected to have any material
adverse effect whatsoever upon the validity or enforceability of any Loan
Document, (b) has been or could reasonably be expected to be material and
adverse to the business or condition (financial or otherwise) of Borrower
and its Subsidiaries, taken as a whole or (c) has materially impaired or
could reasonably be expected to materially impair the ability of Borrower
to perform the Obligations.
"Maturity Date" means the date that is 60 days after the Closing
Date.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA to which Borrower or any of its
ERISA Affiliates contributes or is obligated to contribute.
"Negative Pledge" means a Contractual Obligation which contains a
covenant binding on Borrower or any of its Subsidiaries that prohibits
Liens on any of its Property, other than (a) any such covenant contained
in a Contractual Obligation granting or relating to a particular Lien
which affects only the Property that is the subject of such Lien and (b)
any such covenant that does not apply to Liens securing the Obligations.
"Net Cash Sales Proceeds" means, with respect to any Disposition,
the sum of (a) the Cash proceeds received by or for the account of
Borrower and its Subsidiaries from such Disposition plus (b) the amount of
Cash received by or for the account of Borrower and its Subsidiaries upon
the sale, collection or other liquidation of any proceeds that are not
Cash from such Disposition, in each case net of (i) any amount required to
be paid to any Person owning an interest in the assets disposed of, (ii)
any amount applied to the repayment of Indebtedness secured by a Lien
permitted under Section 6.7 on the asset disposed of, (iii) any transfer,
income or other taxes payable as a result of such Disposition, (iv)
professional fees and expenses, fees due to any Governmental Agency,
broker's commissions and other out-of-pocket costs of sale actually paid
to any Person that is not an Affiliate of Borrower attributable to such
Disposition and (v) any reserves established in accordance with GAAP in
connection with such Disposition.
"Net Income" means, with respect to any fiscal period, the
consolidated net income of Borrower and its Subsidiaries for that period,
determined in accordance with GAAP, consistently applied.
"Note" means any of the promissory notes made by Borrower to a
Lender evidencing Advances under that Lender's Pro Rata Share of the
Commitment, substantially in the form of Exhibit C, either as originally
executed or as the same may from time to time be supplemented, modified,
amended, renewed, extended or supplanted.
"Obligations" means all present and future obligations of every kind
or nature of Borrower or any of the Subsidiary Guarantors at any time and
from time to time owed to the Administrative Agent or the Lenders or any
one or more of them, under any one or more of the Loan Documents, whether
due or to become due, matured or unmatured, liquidated or unliquidated, or
contingent or noncontingent, including obligations of performance as well
as obligations of payment, and including interest
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<PAGE> 17
that accrues after the commencement of any proceeding under any Debtor
Relief Law by or against Borrower or any of the Subsidiary Guarantors.
"Opinion of Counsel" means the favorable written legal opinion of
Skadden, Arps, Slate, Meagher & Flom, LLP, special counsel to Borrower,
substantially in the form of Exhibit D, together with copies of all
factual certificates and legal opinions delivered to such counsel in
connection with such opinion upon which such counsel has relied.
"Original Loan Agreement" means the Revolving Loan Agreement dated
as of July 27, 1999 by and among Borrower, the Lenders party thereto,
First Union National Bank, as Syndication Agent, Wachovia Bank, National
Association, as Documentation Agent, Bank of America, N.A., as
Administrative Agent, pursuant to which certain of the Lenders agreed to
make revolving loans to Borrower in the original aggregate principal
amount of up to $150,000,000, as such Original Loan Agreement existed
immediately prior to the effectiveness of this Agreement.
"Other Loan Agreement" means that certain Revolving Loan Agreement
dated as of July 28, 1998 among Borrower, the lenders party thereto and
Bank of America National Trust and Savings Association, as administrative
agent, as amended or revised from time to time in accordance with its
terms.
"Party" means any Person other than the Administrative Agent and the
Lenders, which now or hereafter is a party to any of the Loan Documents.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereof established under ERISA.
"Pension Plan" means any "employee pension benefit plan" (as such
term is defined in Section 3(2) of ERISA), other than a Multiemployer
Plan, which is subject to Title IV of ERISA and is maintained by Borrower.
"Permitted Encumbrances" means:
(a) Inchoate Liens incident to construction on or maintenance
of Property; or Liens incident to construction on or maintenance of
Property now or hereafter filed of record for which adequate reserves
have been set aside (or deposits made pursuant to applicable Law) and
which are being contested in good faith by appropriate proceedings and
have not proceeded to judgment, provided that, by reason of nonpayment
of the obligations secured by such Liens, no such Property is subject
to a material impending risk of loss or forfeiture;
(b) Liens for taxes and assessments on Property which are not
yet past due; or Liens for taxes and assessments on Property for which
adequate reserves have been set aside and are being contested in good
faith by appropriate proceedings and have not proceeded to judgment,
provided that, by reason of nonpayment of the obligations secured by such
Liens, no such Property is subject to a material impending risk of loss or
forfeiture;
(c) defects and irregularities in title to any Property which
in the aggregate do not materially impair the fair market value or use of
the Property for the purposes for which it is or may reasonably be
expected to be held;
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<PAGE> 18
(d) easements, exceptions, reservations, or other agreements
for the purpose of pipelines, conduits, cables, wire communication lines,
power lines and substations, streets, trails, walkways, drainage,
irrigation, water, and sewerage purposes, dikes, canals, ditches, the
removal of oil, gas, coal, or other minerals, and other like purposes
affecting Property which in the aggregate do not materially burden or
impair the fair market value or use of such Property for the purposes for
which it is or may reasonably be expected to be held;
(e) easements, exceptions, reservations, or other agreements
for the purpose of facilitating the joint or common use of Property in or
adjacent to a shopping center or similar project affecting Property which
in the aggregate do not materially burden or impair the fair market value
or use of such Property for the purposes for which it is or may reasonably
be expected to be held;
(f) rights reserved to or vested in any Governmental Agency to
control or regulate, or obligations or duties to any Governmental Agency
with respect to, the use of any Property;
(g) rights reserved to or vested in any Governmental Agency to
control or regulate, or obligations or duties to any Governmental Agency
with respect to, any right, power, franchise, grant, license, or permit;
(h) present or future zoning laws and ordinances or other laws
and ordinances restricting the occupancy, use, or enjoyment of Property;
(i) statutory Liens, other than those described in clauses (a)
or (b) above, arising in the ordinary course of business with respect to
obligations which are not delinquent or are being contested in good faith,
provided that, if delinquent, adequate reserves have been set aside with
respect thereto and, by reason of nonpayment, no Property is subject to a
material impending risk of loss or forfeiture;
(j) covenants, conditions, and restrictions affecting the use
of Property which in the aggregate do not materially impair the fair
market value or use of the Property for the purposes for which it is or
may reasonably be expected to be held;
(k) rights of tenants under leases and rental agreements
covering Property entered into in the ordinary course of business of the
Person owning such Property;
(l) Liens consisting of pledges or deposits to secure
obligations under workers' compensation laws or similar legislation,
including Liens of judgments thereunder which are not currently
dischargeable;
(m) Liens consisting of pledges or deposits of Property to
secure performance in connection with operating leases made in the
ordinary course of business, provided the aggregate value of all such
pledges and deposits in connection with any such lease does not at any
time exceed 20% of the annual fixed rentals payable under such lease;
(n) Liens consisting of deposits of Property to secure bids
made with respect to, or performance of, contracts (other than contracts
creating or evidencing an extension of credit to the depositor);
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<PAGE> 19
(o) Liens consisting of any right of offset, or statutory
bankers' lien, on bank deposit accounts maintained in the ordinary course
of business so long as such bank deposit accounts are not established or
maintained for the purpose of providing such right of offset or bankers'
lien;
(p) Liens consisting of deposits of Property to secure
statutory obligations of Borrower;
(q) Liens consisting of deposits of Property to secure (or in
lieu of) surety, appeal or customs bonds;
(r) Liens created by or resulting from any litigation or legal
proceeding in the ordinary course of business which is currently being
contested in good faith by appropriate proceedings, provided that,
adequate reserves have been set aside and no material Property is subject
to a material impending risk of loss or forfeiture; and
(s) other non-consensual Liens incurred in the ordinary course
of business but not in connection with the incurrence of any Indebtedness,
which do not in the aggregate, when taken together with all other Liens,
materially impair the fair market value or use of the Property for the
purposes for which it is or may reasonably be expected to be held.
"Permitted Right of Others" means a Right of Others consisting of
(a) an interest (other than a legal or equitable co-ownership interest, an
option or right to acquire a legal or equitable co-ownership interest and
any interest of a ground lessor under a ground lease), that does not
materially impair the fair market value or use of Property for the
purposes for which it is or may reasonably be expected to be held, (b) an
option or right to acquire a Lien that would be a Permitted Encumbrance,
(c) the subordination of a lease or sublease in favor of a financing
entity and (d) a license, or similar right, of or to intangible assets
granted in the ordinary course of business.
"Person" means any individual or entity, including a trustee,
corporation, limited liability company, general partnership, limited
partnership, joint stock company, trust, estate, unincorporated
organization, business association, firm, joint venture, Governmental
Agency, or other entity.
"Pre-Existing Loan Documents" mean the Original Loan Agreement and
the Pre-Existing Notes and the Subsidiary Guaranty delivered thereunder,
as existing immediately prior to the effectiveness of this Agreement.
"Pre-Existing Notes" means those certain promissory notes delivered
under the Original Loan Agreement, as existing immediately prior to the
effectiveness of this Agreement.
"Predecessor" means United States Enrichment Corporation, a
wholly-owned United States Government corporation.
"Prime Rate" means the rate of interest publicly announced from time
to time by Bank of America as its "prime rate." It is a rate set by Bank
of America based upon various factors including Bank of America's costs
and desired return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be priced at,
above, or below such announced rate. Any change in the Prime Rate
announced by Bank of America shall take effect at the opening of business
on the day specified in the public announcement of such change.
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<PAGE> 20
"Privatization" means the transfer on the Reference Date of
ownership of Predecessor from the United States Government to private
investors, as described in the Registration Statement, pursuant to the
USEC Privatization Act (Public Law 104-134), the Energy Policy Act (Public
Law 102-486) and other applicable Laws.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Pro Rata Share" means, with respect to each Lender, the percentage
of the Commitment set forth opposite the name of that Lender on Schedule
1.1, as such percentage may be increased or decreased pursuant to a
Commitment Assignment and Acceptance executed in accordance with Section
11.8.
"Quarterly Payment Date" means each June 30, September 30, December
31 and March 31.
"Real Property" means, as of any date of determination, all real
property then or theretofore owned, leased or occupied by any of Borrower.
"Reference Date" means July 28, 1998.
"Registration Statement" means the registration statement on Form
S-1 filed by Borrower on or about June 29, 1998 with the Securities and
Exchange Commission, in the form in which it became effective under the
Securities Act of 1933, as amended.
"Regulation D" means Regulation D, as at any time amended, of the
Board of Governors of the Federal Reserve System, or any other regulation
in substance substituted therefor.
"Regulation U" means Regulation U, as at any time amended, of the
Board of Governors of the Federal Reserve System, or any other regulation
in substance substituted therefor.
"Request for Loan" means a written request for a Loan substantially
in the form of Exhibit E, signed by a Responsible Official of Borrower, on
behalf of Borrower, and properly completed to provide all information
required to be included therein.
"Requirement of Law" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any Law, or judgment, award,
decree, writ or determination of a Governmental Agency, in each case
applicable to or binding upon such Person or any of its Property or to
which such Person or any of its Property is subject.
"Requisite Lenders" means (a) as of any date of determination if the
Commitment is then in effect, Lenders having in the aggregate 51% or more
of the Commitment then in effect and (b) as of any date of determination
if the Commitment has then been suspended or terminated and there is then
any Indebtedness evidenced by the Notes, Lenders holding Notes evidencing
in the aggregate 51% or more of the aggregate Indebtedness then evidenced
by the Notes.
"Responsible Official" means (a) any Senior Officer of Borrower and
(b) any other responsible official of Borrower so designated in a written
notice thereof from a Senior Officer to the Administrative Agent. The
Lenders shall be entitled to conclusively rely upon any document or
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<PAGE> 21
certificate that is signed or executed by a Responsible Official of
Borrower or any of its Subsidiaries as having been authorized by all
necessary corporate, partnership and/or other action on the part of
Borrower or such Subsidiary.
"Right of Others" means, as to any Property in which a Person has an
interest, any legal or equitable right, title or other interest (other
than a Lien) held by any other Person in that Property, and any option or
right held by any other Person to acquire any such right, title or other
interest in that Property, including any option or right to acquire a
Lien; provided, however, that (a) no covenant restricting the use or
disposition of Property of such Person contained in any Contractual
Obligation of such Person and (b) no provision contained in a contract
creating a right of payment or performance in favor of a Person that
conditions, limits, restricts, diminishes, transfers or terminates such
right shall be deemed to constitute a Right of Others.
"Senior Officer" means (a) the chief executive officer, (b) the
president, (c) any executive vice president, (d) the chief financial
officer or (e) the treasurer, in each case of Borrower.
"Solvent" means, with respect to a Person, that (a) the fair market
value of the Person's assets will be in excess of the amount that will be
required to be paid on or in respect of the existing debts and other
liabilities (including contingent liabilities) of the Person as they
mature, (b) the Person does not have unreasonably small capital to carry
on its business as conducted or as proposed to be conducted, (c) the
Person does not intend to or believe that it will incur debts beyond its
ability to pay such debts as they mature, taking into account the timing
and amounts of Cash to be received by it and the amounts to be payable on
or in respect of its obligations, (d) the Person does not intend to
hinder, delay or defraud either present or future creditors and (e) the
Person has received fair consideration and reasonably equivalent value in
exchange for incurring its Obligations under the Loan Documents.
"Special Eurodollar Circumstance" means the application or adoption
after the Closing Date of any Law or interpretation, or any change therein
or thereof, or any change in the interpretation or administration thereof
by any Governmental Agency, central bank or comparable authority charged
with the interpretation or administration thereof, or compliance by any
Lender or its Eurodollar Lending Office with any request or directive
(whether or not having the force of Law) of any such Governmental Agency,
central bank or comparable authority.
"Stockholders' Equity" means, as of any date of determination and
with respect to any Person, the consolidated stockholders' equity of the
Person as of that date determined in accordance with GAAP; provided that
there shall be excluded from Stockholders' Equity any amount attributable
to Disqualified Stock.
"Subsidiary" means, as of any date of determination and with respect
to any Person, any corporation, limited liability company or partnership
(whether or not, in any case, characterized as such or as a "joint
venture"), whether now existing or hereafter organized or acquired: (a) in
the case of a corporation or limited liability company, of which a
majority of the securities having ordinary voting power for the election
of directors or other governing body (other than securities having such
power only by reason of the happening of a contingency) are at the time
beneficially owned by such Person and/or one or more Subsidiaries of such
Person, or (b) in the case of a partnership, of which a majority of the
partnership or other ownership interests are at the time beneficially
owned by such Person and/or one or more of its Subsidiaries.
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"Subsidiary Guarantors" means (a) USEC (Delaware) and (b) each other
Subsidiary of Borrower that is not an Inactive Subsidiary.
"Subsidiary Guaranty" means the continuing guaranty of the
Obligations to be executed and delivered pursuant to Article 8 by the
Subsidiary Guarantors, in the form of Exhibit F, either as originally
executed or as it may from time to time be supplemented, modified,
amended, extended or supplanted.
"Syndication Agent" means First Union National Bank. The Syndication
Agent shall have no rights, duties, obligations or responsibilities beyond
those of a Lender.
"Total Capitalization" means, as of any date of determination, the
sum of (a) the Stockholders' Equity of Borrower and its Subsidiaries on
that date plus (b) all Indebtedness of Borrower and its Subsidiaries on
that date.
"to the best knowledge of" means, when modifying a representation,
warranty or other statement of any Person, that the fact or situation
described therein is known by the Person (or, in the case of a Person
other than a natural Person, known by a Responsible Official of that
Person) making the representation, warranty or other statement, or with
the exercise of reasonable due diligence under the circumstances (in
accordance with the standard of what a reasonable Person in similar
circumstances would have done) would have been known by the Person (or, in
the case of a Person other than a natural Person, would have been known by
a Responsible Official of that Person).
"type", when used with respect to any Loan or Advance, means the
designation of whether such Loan or Advance is an Base Rate Loan or
Advance, or a Eurodollar Rate Loan or Advance.
"USEC (Delaware)" means United States Enrichment Corporation, a
Delaware corporation, which corporation on the Reference Date (a) became a
Wholly-Owned Subsidiary of Borrower and (b) succeeded by merger to all or
substantially all of the assets of Predecessor (other than assets to be
transferred to the United States Government pursuant to the
Privatization). When used with respect to periods prior to the Reference
Date, the term "USEC (Delaware)" shall include Predecessor unless the
context clearly otherwise requires.
"Wholly-Owned Subsidiary" means a Subsidiary of Borrower, 100% of
the capital stock or other equity interest of which is owned, directly or
indirectly, by Borrower, except for director's qualifying shares required
by applicable Laws.
1.2 Use of Defined Terms. Any defined term used in the plural shall
refer to all members of the relevant class, and any defined term used in the
singular shall refer to any one or more of the members of the relevant class.
1.3 Accounting Terms. All accounting terms not specifically defined
in this Agreement shall be construed in conformity with, and all financial data
required to be submitted by this Agreement shall be prepared in conformity with,
GAAP applied on a consistent basis, except as otherwise specifically prescribed
herein. In the event that GAAP changes during the term of this Agreement such
that the covenants contained in Sections 6.9 and 6.10 would then be calculated
in a different manner or with different components, (a) Borrower and the Lenders
agree to amend this Agreement in such respects as are necessary to conform those
covenants as criteria for evaluating Borrower's financial condition to
substantially the same criteria as were effective prior to such change in GAAP
and (b) Borrower shall be deemed to be in compliance with the covenants
contained in
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<PAGE> 23
the aforesaid Sections if and to the extent that Borrower would have been in
compliance therewith under GAAP as in effect immediately prior to such change,
but shall have the obligation to deliver each of the materials described in
Article 7 to the Administrative Agent and the Lenders, on the dates therein
specified, with financial data presented in a manner which conforms with GAAP as
in effect immediately prior to such change.
1.4 Rounding. Any financial ratios required to be maintained by
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed in this
Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
1.5 Exhibits and Schedules. All Exhibits and Schedules to this
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.6 References to "Borrower and its Subsidiaries". Any reference
herein to "Borrower and its Subsidiaries" or the like shall refer solely to
Borrower during such times, if any, as Borrower shall have no Subsidiaries.
1.7 Miscellaneous Terms. The term "or" is disjunctive; the term
"and" is conjunctive. The term "shall" is mandatory; the term "may" is
permissive. Masculine terms also apply to females; feminine terms also apply to
males. The term "including" is by way of example and not limitation.
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Article 2
LOANS
2.1 Loans-General.
(a) Subject to the terms and conditions set forth in this
Agreement, at any time and from time to time commencing on the Closing Date
through the Maturity Date, each Lender shall, pro rata according to that
Lender's Pro Rata Share of the then applicable Commitment, make Advances to
Borrower under the Commitment in such amounts as Borrower may request that do
not result in the aggregate principal amount outstanding under the Notes to
exceed the Commitment. Subject to the limitations set forth herein, Borrower may
borrow, repay and reborrow under the Commitment without premium or penalty.
(b) [Intentionally Omitted.]
(c) [Intentionally Omitted.]
(d) Each Loan shall be made pursuant to a Request for Loan which
shall specify the requested (i) date of such Loan, (ii) type of Loan, (iii)
amount of such Loan, and (iv) in the case of a Eurodollar Rate Loan, the
Eurodollar Period for such Loan.
(e) Promptly following receipt of a Request for Loan, the
Administrative Agent shall notify each Lender by telecopier of the date and type
of the Loan, the applicable Eurodollar Period, and that Lender's Pro Rata Share
of the Loan. Not later than 10:00 a.m., California time, on the date specified
for any Loan (which must be a Banking Day), each Lender shall make its Pro Rata
Share of the Loan in immediately available funds available to the Administrative
Agent at the Administrative Agent's Office. Upon satisfaction or waiver of the
applicable conditions set forth in Article 8, all Advances shall be made
available to Borrower on that date by such means as it may request in
immediately available funds.
(f) Unless the Requisite Lenders otherwise consent, each Base
Rate Loan shall be not less than $1,000,000 and in an integral multiple of
$1,000,000 and each Eurodollar Rate Loan shall be not less than $5,000,000 and
in an integral multiple of $1,000,000.
(g) [Intentionally Omitted].
(h) The Advances made by each Lender under the Commitment shall
be evidenced by that Lender's Note.
(i) A Request for Loan shall be irrevocable upon the
Administrative Agent's first notification thereof.
(j) If no Request for Loan has been made within the requisite
notice periods set forth in Section 2.2 or 2.3 prior to the end of the
Eurodollar Period for any outstanding Eurodollar Rate Loan, then on the last day
of such Eurodollar Period, such Eurodollar Rate Loan shall be automatically
converted into a Base Rate Loan in the same amount.
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2.2 Base Rate Loans. Each request by Borrower for a Base Rate Loan
shall be made pursuant to a Request for Loan received by the Administrative
Agent, at the Administrative Agent's Office, not later than 11:00 a.m.
California time, on the date (which must be a Banking Day) immediately prior to
the date of the requested Base Rate Loan (except in the case of Base Rate Loans
made on the Closing Date for which the Request for Loan may be delivered on the
Closing Date). All Loans shall constitute Base Rate Loans unless properly
designated as a Eurodollar Rate Loan pursuant to Section 2.3.
2.3 Eurodollar Rate Loans. Each request by Borrower for a Eurodollar
Rate Loan shall be made pursuant to a Request for Loan received by the
Administrative Agent, at the Administrative Agent's Office, not later than 9:00
a.m., California time, at least three (3) Eurodollar Banking Days before the
first day of the applicable Eurodollar Period.
(a) On the date which is two (2) Eurodollar Banking Days before
the first day of the applicable Eurodollar Period, the Administrative
Agent shall confirm its determination of the applicable Eurodollar Rate
(which determination shall be conclusive in the absence of manifest
error) and promptly shall give notice of the same to Borrower and the
Lenders by telecopier.
(b) Unless the Administrative Agent and the Requisite Lenders
otherwise consent, no more than ten (10) Eurodollar Rate Loans shall be
outstanding at any one time.
(c) No Eurodollar Rate Loan may be requested during the
continuation of a Default or Event of Default.
(d) Nothing contained herein shall require any Lender to fund
any Eurodollar Rate Advance in the Designated Eurodollar Market.
2.4 [Intentionally Omitted].
2.5 [Intentionally Omitted].
2.6 Voluntary Reduction of Commitment. Borrower shall have the
right, at any time and from time to time, without penalty or charge, upon at
least five (5) Banking Days' prior written notice by a Responsible Official of
Borrower to the Administrative Agent, voluntarily to reduce, permanently and
irrevocably, in aggregate principal amounts in an integral multiple of
$1,000,000 but not less than $5,000,000, or to terminate, all or a portion of
the then undisbursed portion of the Commitment. The Administrative Agent shall
promptly notify the Lenders of any reduction or termination of the Commitment
under this Section.
2.7 [Intentionally Omitted].
2.8 Optional Termination of Commitment. Following the occurrence of
a Change in Control, the Requisite Lenders may in their sole and absolute
discretion elect, during the thirty (30) day period immediately subsequent to
the later of (a) such occurrence or (b) the earlier of (i) receipt of Borrower's
written notice to the Administrative Agent of such occurrence or (ii) if no such
notice has been received by the Administrative Agent, the date upon which the
Administrative Agent has actual knowledge thereof, to terminate the Commitment,
in which case the Commitment shall be terminated, and all outstanding Loans
shall be repaid, effective on the date which is thirty (30) days subsequent to
written notice from the Administrative Agent to Borrower thereof.
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2.9 Administrative Agent's Right to Assume Funds Available for
Advances. Unless the Administrative Agent shall have been notified by any Lender
no later than 10:00 a.m. on the Banking Day of the proposed funding by the
Administrative Agent of any Loan that such Lender does not intend to make
available to the Administrative Agent such Lender's portion of the total amount
of such Loan, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent on the date of the Loan and the
Administrative Agent may, in reliance upon such assumption, make available to
Borrower a corresponding amount. If the Administrative Agent has made funds
available to Borrower based on such assumption and such corresponding amount is
not in fact made available to the Administrative Agent by such Lender, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the Administrative
Agent promptly shall notify Borrower and Borrower shall pay such corresponding
amount to the Administrative Agent. The Administrative Agent also shall be
entitled to recover from such Lender interest on such corresponding amount in
respect of each day from the date such corresponding amount was made available
by the Administrative Agent to Borrower to the date such corresponding amount is
recovered by the Administrative Agent, at a rate per annum equal to the daily
Federal Funds Rate. Nothing herein shall be deemed to relieve any Lender from
its obligation to fulfill its share of the Commitment or to prejudice any rights
which the Administrative Agent or Borrower may have against any Lender as a
result of any default by such Lender hereunder.
2.10 Guaranty. The Obligations shall be guaranteed by the
Subsidiary Guarantors pursuant to the Subsidiary Guaranty.
2.11 Adjusting Purchase Payments. Principal amounts outstanding
under the Commitment of the Original Loan Agreement on the effective date of
this Agreement (the "Carryover Principal Balance") remain outstanding under the
Commitment hereunder. Concurrently with the effectiveness of this Agreement and
the making of the initial Loan as provided in Section 8.1, the Lenders agree to
purchase and sell undivided interests in the Carryover Principal Balance by
making or receiving Adjusting Purchase Payments as specified in Schedule 2.11
(the "Adjusting Purchase Payment(s)") so that the Carryover Principal Balance
will be properly allocated and owing to the Lenders under the Notes in
accordance with the Pro-Rata Shares specified in Schedule 1.1. Each Lender
making an Adjusting Purchase Payment shall deliver it to the Administrative
Agent together with its funding of its initial Advance, and the Administrative
Agent shall forward such Adjusting Purchase Payments to the Lenders entitled
thereto promptly after receipt in accordance with the allocations specified in
Schedule 2.11. On the effective date of this Agreement, in addition to any other
Advances that may be made, each Lender shall be deemed as having made an Advance
in the amount of its Pro-Rata Share of the Carryover Principal Balance.
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Article 3
PAYMENTS AND FEES
3.1 Principal and Interest.
(a) Interest shall be payable on the outstanding daily unpaid
principal amount of each Advance from the date thereof until payment in
full is made and shall accrue and be payable at the rates set forth or
provided for herein before and after Default, before and after maturity,
before and after judgment, and before and after the commencement of any
proceeding under any Debtor Relief Law, with interest on overdue interest
at the Default Rate to the fullest extent permitted by applicable Laws.
(b) Interest accrued on each Base Rate Loan shall be due and
payable on each Quarterly Payment Date. Except as otherwise provided in
Section 3.9, the unpaid principal amount of any Base Rate Loan shall bear
interest at a fluctuating rate per annum equal to the Base Rate. Each
change in the interest rate under this Section 3.1(b) due to a change in
the Base Rate shall take effect simultaneously with the corresponding
change in the Base Rate.
(c) Interest accrued on each Eurodollar Rate Loan which is for
a term of three months or less shall be due and payable on the last day
of the related Eurodollar Period. Interest accrued on each other
Eurodollar Rate Loan shall be due and payable on the date which is three
months after the date such Eurodollar Rate Loan was made and on the last
day of the related Eurodollar Period. Except as otherwise provided in
Section 3.9, the unpaid principal amount of any Eurodollar Rate Loan
shall bear interest at a rate per annum equal to the Eurodollar Rate for
that Eurodollar Rate Loan plus the Applicable Eurodollar Margin.
(d) If not sooner paid, the principal Indebtedness evidenced by
the Notes shall be payable as follows:
(i) the amount, if any, by which the principal Indebtedness
evidenced by the Notes at any time exceeds the then applicable
Commitment shall be payable immediately;
(ii) [Intentionally Omitted];
(iii) [Intentionally Omitted];
(iv) [Intentionally Omitted];
(v) [Intentionally Omitted];
(vi) the principal Indebtedness evidenced by the Notes
shall be payable on the Maturity Date; and
(vii) [Intentionally Omitted]
(e) [Intentionally Omitted].
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(f) The principal Indebtedness evidenced by the Notes may, at
any time and from time to time, voluntarily be paid or prepaid in whole
or in part without premium or penalty, except that with respect to any
voluntary prepayment under this Subsection, (i) any partial prepayment
shall be not less than $1,000,000 and shall be an integral multiple of
$1,000,000, (ii) the Administrative Agent shall have received written
notice of any prepayment by 9:00 a.m. California time on the date that is
one (1) Banking Day before the date of prepayment (which must be a
Banking Day) in the case of an Base Rate Loan, and, in the case of a
Eurodollar Rate Loan, three (3) Banking Days before the date of
prepayment, which notice shall identify the date and amount of the
prepayment and the Loan(s) being prepaid, (iii) each prepayment of
principal on any Eurodollar Rate Loan shall be accompanied by payment of
interest accrued to the date of payment on the amount of principal paid
and (iv) any payment or prepayment of all or any part of any Eurodollar
Rate Loan on a day other than the last day of the applicable Eurodollar
Period shall be subject to Section 3.8(e).
3.2 Arranger and Agency Fees. On the Closing Date and on each other
date upon which a fee is payable, Borrower shall pay to the Lead Arranger and
the Administrative Agent such fees as heretofore agreed upon by letter agreement
between Borrower, the Lead Arranger and the Administrative Agent. The fees paid
to the Lead Arranger and the Administrative Agent are solely for their own
account and are nonrefundable.
3.3 Facility Fee. Borrower shall pay to the Administrative Agent,
for the ratable accounts of the Lenders pro rata according to their Pro Rata
Share of the Commitment, a facility fee equal to the Applicable Facility Fee
Rate per annum times the Commitment in effect on each day during a Fiscal
Quarter. The facility fee shall be payable quarterly in arrears on each
Quarterly Payment Date.
3.4 Utilization Fee. Borrower shall pay to the Administrative
Agent, for the ratable accounts of the Lenders pro rata according to their Pro
Rata Share of the Commitment, a utilization fee equal to 0.125% (12.5 basis
points) per annum times the aggregate Indebtedness evidenced by the Notes for
each day (or portion thereof) that such Indebtedness evidenced by the Notes is
in excess of 33-1/3% of the Commitment. The utilization fee shall be payable
quarterly in arrears on each Quarterly Payment Date.
3.5 [Intentionally Omitted].
3.6 [Intentionally Omitted].
3.7 Increased Commitment Costs. If any Lender shall determine in
good faith that the introduction after the Closing Date of any applicable law,
rule, regulation or guideline regarding capital adequacy, or any change therein
or any change in the interpretation or administration thereof by any central
bank or other Governmental Agency charged with the interpretation or
administration thereof, or compliance by such Lender (or its Eurodollar Lending
Office) or any corporation controlling such Lender, with any request, guideline
or directive regarding capital adequacy (whether or not having the force of Law)
of any such central bank or other authority not imposed as a result of such
Lender's or such corporation's failure to comply with any other Laws, affects or
would affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy
and such Lender's desired return on capital) determines in good faith that the
amount of such capital is increased, or the rate of return on capital is
reduced, as a consequence of its obligations under this Agreement, then, within
five (5) Banking Days after demand of such Lender, Borrower shall pay to such
Lender, from time to time as specified in good faith by such Lender, additional
amounts sufficient to compensate such Lender in light of such circumstances, to
the extent reasonably allocable to such
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<PAGE> 29
obligations under this Agreement, provided that Borrower shall not be obligated
to pay any such amount which arose prior to the date which is ninety (90) days
preceding the date of such demand or is attributable to periods prior to the
date which is ninety (90) days preceding the date of such demand. Each Lender's
determination of such amounts shall be conclusive in the absence of manifest
error.
3.8 Eurodollar Costs and Related Matters.
(a) In the event that any Governmental Agency imposes on any
Lender any reserve or comparable requirement (including any emergency,
supplemental or other reserve) with respect to the Eurodollar Obligations
of that Lender, Borrower shall pay that Lender within five (5) Banking
Days after demand all amounts necessary to compensate such Lender
(determined as though such Lender's Eurodollar Lending Office had funded
100% of its Eurodollar Rate Advance in the Designated Eurodollar Market)
in respect of the imposition of such reserve requirements (provided, that
Borrower shall not be obligated to pay any such amount which arose prior
to the date which is ninety (90) days preceding the date of such demand
or is attributable to periods prior to the date which is ninety (90) days
preceding the date of such demand). The Lender's determination of such
amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of
any Special Eurodollar Circumstance:
(1) shall subject any Lender or its Eurodollar Lending
Office to any tax, duty or other charge or cost with respect to
any Eurodollar Rate Advance, any of its Notes evidencing
Eurodollar Rate Loans or its obligation to make Eurodollar Rate
Advances, or shall change the basis of taxation of payments to any
Lender attributable to the principal of or interest on any
Eurodollar Rate Advance or any other amounts due under this
Agreement in respect of any Eurodollar Rate Advance, any of its
Notes evidencing Eurodollar Rate Loans or its obligation to make
Eurodollar Rate Advances, excluding (i) taxes imposed on or
measured in whole or in part by its overall net income by (A) any
jurisdiction (or political subdivision thereof) in which it is
organized or maintains its principal office or Eurodollar Lending
Office or (B) any jurisdiction (or political subdivision thereof)
in which it is "doing business" and (ii) any withholding taxes or
other taxes based on gross income imposed by the United States of
America for any period with respect to which it has failed to
provide Borrower with the appropriate form or forms required by
Section 11.21, to the extent such forms are then required by
applicable Laws;
(2) shall impose, modify or deem applicable any reserve not
applicable or deemed applicable on the date hereof (including any
reserve imposed by the Board of Governors of the Federal Reserve
System, special deposit, capital or similar requirements against
assets of, deposits with or for the account of, or credit extended
by, any Lender or its Eurodollar Lending Office); or
(3) shall impose on any Lender or its Eurodollar Lending
Office or the Designated Eurodollar Market any other condition
affecting any Eurodollar Rate Advance, any of its Notes evidencing
Eurodollar Rate Loans, its obligation to make Eurodollar Rate
Advances or this Agreement, or shall otherwise affect any of the
same;
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(4) and the result of any of the foregoing, as determined
in good faith by such Lender, increases the cost to such Lender or
its Eurodollar Lending Office of making or maintaining any
Eurodollar Rate Advance or in respect of any Eurodollar Rate
Advance, any of its Notes evidencing Eurodollar Rate Loans or its
obligation to make Eurodollar Rate Advances or reduces the amount
of any sum received or receivable by such Lender or its Eurodollar
Lending Office with respect to any Eurodollar Rate Advance, any of
its Notes evidencing Eurodollar Rate Loans or its obligation to
make Eurodollar Rate Advances (assuming such Lender's Eurodollar
Lending Office had funded 100% of its Eurodollar Rate Advance in
the Designated Eurodollar Market), then, within five (5) Banking
Days after demand by such Lender (with a copy to the
Administrative Agent), Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender for
such increased cost or reduction (determined as though such
Lender's Eurodollar Lending Office had funded 100% of its
Eurodollar Rate Advance in the Designated Eurodollar Market);
provided, that Borrower shall not be obligated to pay any such
amount which arose prior to the date which is ninety (90) days
preceding the date of such demand or is attributable to periods
prior to the date which is ninety (90) days preceding the date of
such demand. A statement of any Lender claiming compensation under
this subsection shall be conclusive in the absence of manifest
error.
(c) If, after the date hereof, the existence or occurrence
of any Special Eurodollar Circumstance shall, in the good faith opinion
of any Lender, make it unlawful or impossible for such Lender or its
Eurodollar Lending Office to make, maintain or fund its portion of any
Eurodollar Rate Loan, or materially restrict the authority of such Lender
to purchase or sell, or to take deposits of, Dollars in the Designated
Eurodollar Market, or to determine or charge interest rates based upon
the Eurodollar Rate, and such Lender shall so notify the Administrative
Agent, then such Lender's obligation to make Eurodollar Rate Advances
shall be suspended for the duration of such illegality or impossibility
and the Administrative Agent forthwith shall give notice thereof to the
other Lenders and Borrower. Upon receipt of such notice, the outstanding
principal amount of such Lender's Eurodollar Rate Advances, together with
accrued interest thereon, automatically shall be converted to Base Rate
Advances on either (1) the last day of the Eurodollar Period(s)
applicable to such Eurodollar Rate Advances if such Lender may lawfully
continue to maintain and fund such Eurodollar Rate Advances to such
day(s) or (2) immediately if such Lender may not lawfully continue to
fund and maintain such Eurodollar Rate Advances to such day(s), provided
that in such event the conversion shall not be subject to payment of a
prepayment fee under Section 3.8(e). Each Lender agrees to endeavor
promptly to notify Borrower of any event of which it has actual
knowledge, occurring after the Closing Date, which will cause that Lender
to notify the Administrative Agent under this Section, and agrees to
designate a different Eurodollar Lending Office if such designation will
avoid the need for such notice and will not, in the good faith judgment
of such Lender, otherwise be materially disadvantageous to such Lender.
In the event that any Lender is unable, for the reasons set forth above,
to make, maintain or fund its portion of any Eurodollar Rate Loan, such
Lender shall fund such amount as an Base Rate Advance for the same period
of time, and such amount shall be treated in all respects as an Base Rate
Advance. Any Lender whose obligation to make Eurodollar Rate Advances has
been suspended under this Section shall promptly notify the
Administrative Agent and Borrower of the cessation of the Special
Eurodollar Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Eurodollar Rate Loan:
(1) the Administrative Agent reasonably determines that, by
reason of circumstances affecting the Designated Eurodollar Market
generally that are beyond the reasonable control of the Lenders,
deposits in Dollars (in the applicable amounts) are not being
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offered to any Lender in the Designated Eurodollar Market for the
applicable Eurodollar Period; or
(2) the Requisite Lenders advise the Administrative
Agent that the Eurodollar Rate as determined by the Administrative
Agent (i) does not represent the effective pricing to such Lenders
for deposits in Dollars in the Designated Eurodollar Market in the
relevant amount for the applicable Eurodollar Period, or (ii) will
not adequately and fairly reflect the cost to such Lenders of
making the applicable Eurodollar Rate Advances;
then the Administrative Agent forthwith shall give notice thereof to
Borrower and the Lenders, whereupon until the Administrative Agent
notifies Borrower that the circumstances giving rise to such suspension
no longer exist, the obligation of the Lenders to make any future
Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate
Advance (other than as the result of a conversion required under Section
3.8(c) on a day other than the last day in the applicable Eurodollar
Period (whether voluntarily, involuntarily, by reason of acceleration, or
otherwise), or upon the failure of Borrower (for a reason other than the
breach by a Lender of its obligation pursuant to Section 2.1(a) to make
an Advance) to borrow on the date or in the amount specified for a
Eurodollar Rate Loan in any Request for Loan, Borrower shall pay to the
appropriate Lender within five (5) Banking Days after demand a prepayment
fee or failure to borrow fee, as the case may be (determined as though
100% of the Eurodollar Rate Advance had been funded in the Designated
Eurodollar Market) equal to the sum of:
(1) $250; plus
(2) the amount, if any, by which (i) the additional
interest would have accrued on the amount prepaid or not borrowed at
the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if
that amount had remained or been outstanding through the last day of
the applicable Eurodollar Period exceeds (ii) the interest that the
Lender could recover by placing such amount on deposit in the
Designated Eurodollar Market for a period beginning on the date of
the prepayment or failure to borrow and ending on the last day of
the applicable Eurodollar Period (or, if no deposit rate quotation
is available for such period, for the most comparable period for
which a deposit rate quotation may be obtained); plus
(3) all out-of-pocket expenses incurred by the Lender
reasonably attributable to such payment, prepayment or failure to
borrow.
Each Lender's determination of the amount of any prepayment fee
payable under this Section shall be conclusive in the absence of
manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower
of any event of which it has actual knowledge, occurring after the
Closing Date, which will entitle such Lender to compensation pursuant to
clause (a) or clause (b) of this Section, and agrees to designate a
different Eurodollar Lending Office if such designation will avoid the
need for or reduce the amount of such compensation and will not, in the
good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender. Any request for compensation by a Lender
under this Section shall set forth the basis upon which it has been
determined that such an amount is due from Borrower, a
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<PAGE> 32
calculation of the amount due, and a certification that the corresponding
costs have been incurred by the Lender.
3.9 Late Payments. If any installment of principal or interest or
any fee or cost or other amount payable under any Loan Document to the
Administrative Agent or any Lender is not paid when due, it shall thereafter
bear interest at a fluctuating interest rate per annum at all times equal to the
sum of the Base Rate plus 2%, to the fullest extent permitted by applicable
Laws. Accrued and unpaid interest on past due amounts (including, without
limitation, interest on past due interest) shall be compounded monthly, on the
last day of each calendar month, to the fullest extent permitted by applicable
Laws.
3.10 Computation of Interest and Fees. Computation of interest on
Base Rate Loans under this Agreement shall be calculated on the basis of a year
of 365/366 days and the actual number of days elapsed. Computation of interest
on Eurodollar Rate Loans and all fees under this Agreement shall be calculated
on the basis of a year of 360 days and the actual number of days elapsed.
Interest shall accrue on each Loan for the day on which the Loan is made;
interest shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid. Any Loan that is repaid on the same day
on which it is made shall bear interest for one day. Notwithstanding anything in
this Agreement to the contrary, interest in excess of the maximum amount
permitted by applicable Laws shall not accrue or be payable hereunder or under
the Notes, and any amount paid as interest hereunder or under the Notes which
would otherwise be in excess of such maximum permitted amount shall instead be
treated as a payment of principal.
3.11 Non-Banking Days. If any payment to be made by Borrower or
any other Party under any Loan Document shall come due on a day other than a
Banking Day, payment shall instead be considered due on the next succeeding
Banking Day and the extension of time shall be reflected in computing interest
and fees.
3.12 Manner and Treatment of Payments.
(a) Each payment hereunder (except payments pursuant to
Sections 3.7, 3.8, 11.3, 11.11 and 11.22) or on the Notes or under any
other Loan Document shall be made by Borrower to the Administrative Agent
without setoff, deduction or counterclaim at the Administrative Agent's
Office for the account of each of the Lenders or the Administrative
Agent, as the case may be, in immediately available funds not later than
11:00 a.m. California time, on the day of payment (which must be a
Banking Day). All payments received after such time, on any Banking Day,
shall be deemed received on the next succeeding Banking Day. The amount
of all payments received by the Administrative Agent for the account of
each Lender shall be immediately paid by the Administrative Agent to the
applicable Lender in immediately available funds and, if such payment was
received by the Administrative Agent by 11:00 a.m., California time, on a
Banking Day and not so made available to the account of a Lender on that
Banking Day, the Administrative Agent shall reimburse that Lender for the
cost to such Lender of funding the amount of such payment at the Federal
Funds Rate. All payments shall be made in lawful money of the United
States of America.
(b) Each payment or prepayment on account of any Loan shall be
applied pro rata according to the outstanding Advances made by each
Lender comprising such Loan.
(c) Each Lender shall use its best efforts to keep a record (in
writing or by an electronic data entry system) of Advances made by it and
payments received by it with respect to each of its Notes and, subject to
Section 10.6(g), such record shall, as against Borrower, be presumptive
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<PAGE> 33
evidence of the amounts owing. Notwithstanding the foregoing sentence, the
failure by any Lender to keep such a record shall not affect Borrower's
obligation to pay the Obligations.
(d) (i) Any and all payments by Borrower under this Agreement
shall be made free and clear of and without deduction or withholding for
any and all present or future taxes, including those taxes
described in Section 11.3, levies, imposts, deductions, charges or
withholdings, and all interest, penalties and liabilities with respect
thereto, imposed by any Governmental Agency, excluding, in the
case of each Lender and the Administrative Agent, net income taxes or
branch profits taxes or franchise and excise taxes (to the extent such
taxes are imposed in lieu of net income taxes), imposed on any Lender or
the Administrative Agent as a result of a connection between such Lender
or the Administrative Agent and the jurisdiction of the Governmental
Agency imposing such tax (other than any such connection
arising solely from such Lender or the Administrative Agent having
executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement) (all such non-excluded taxes,
assessments and charges being hereinafter referred to as "Non-Excluded
Taxes"). If Borrower shall be required by law to deduct or
withhold any Non-Excluded Taxes from or in respect of any sum
payable hereunder to any Lender or the Administrative Agent (A) the
amount payable shall be increased as may be necessary so that after
making all required deductions or withholdings (including required
deductions or withholdings for Non-Excluded Taxes applicable to
additional amounts payable under this Section 3.12(d)) such Lender or the
Administrative Agent, as the case may be, receives an amount
equal to the amount it would have received had no such deductions or
withholdings been made, (B) Borrower shall make such deductions or
withholdings and (C) Borrower shall pay the full amount deducted or
withheld to the relevant Governmental Agency in accordance with
applicable Laws.
(ii) Each Lender organized under the Laws of the United
States of America or a State thereof or the District of Columbia on or
prior to the execution and delivery of this Agreement (A) shall provide
each of the Administrative Agent and Borrower with two original and duly
completed United States Internal Revenue Service Forms W-9, or successor
applicable form, certifying that such Lender is a United States resident
and is exempt from United States backup withholding tax, (B) shall
provide the Administrative Agent and Borrower two further copies of any
such form or certification from time to time thereafter as requested in
writing by Borrower and (C) shall obtain such extensions and renewals
thereof as may reasonably be requested in writing by Borrower or the
Administrative Agent. Each Person that shall become a participant
pursuant to Section 11.8 shall, upon the effectiveness of the related
transfer, be required to provide all of the forms and certifications
required pursuant to this Section 3.12(d)(ii) as appropriate, as if such
participant were a Lender; provided that such participant shall furnish
all such required forms and certifications to the Lender from which the
related participation was purchased.
(iii) Notwithstanding anything else in this Agreement to
the contrary, for any period with respect to which a Lender has failed to
comply with the requirements of Section 3.12(d)(ii) or Section 11.21, as
the case may be, such Lender shall not be entitled to any payment under
this Section 3.12(d) or to indemnification under Section 3.12(e) with
respect to Non-Excluded Taxes imposed by reason of such failure;
provided, however, that should a Lender become subject to Non-Excluded
Taxes because of its failure to deliver a form required hereunder,
Borrower shall, at such Lender's expense (including internal costs of
Borrower), take such steps as such Lender shall reasonably require to
assist the Lender to recover such Non-Excluded Taxes.
(iv) Should any Lender claim a refund, credit or
deduction from a Governmental Agency to which such Lender would not be
entitled but for the payment by Borrower of
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Non-Excluded Taxes as required by this Section 3.12(d), such Lender
thereupon shall pay the amount of such refund or, in the case of a credit
or deduction, the amount equal to the amount by which other taxes of such
Lender are actually reduced, together with any interest paid or allowed
by the refunding, crediting or deducting Governmental Agency in
connection with such refund, credit or deduction.
(e) Borrower shall indemnify each Lender and the Administrative
Agent for and hold each of them harmless against the full amount of
Non-Excluded Taxes (including Non-Excluded Taxes of any kind imposed by a
Governmental Agency on additional amounts required to be paid pursuant to
Section 3.12(d)) imposed on or paid by such Lender or the Administrative
Agent, as the case may be. Each Lender and the Administrative Agent
hereby agrees to give written notice to Borrower, as appropriate, of the
assertion of any claim against such Lender or the Agent relating to
Non-Excluded Taxes as promptly as practicable after such Lender or the
Administrative Agent has been notified in writing of such assertion. This
indemnification shall be made within 30 days from the date such Lender or
the Administrative Agent, as the case may be, provides Borrower, as
appropriate, with such written notice.
3.13 Funding Sources. Nothing in this Agreement shall be deemed
to obligate any Lender to obtain the funds for any Loan or Advance in any
particular place or manner or to constitute a representation by any Lender that
it has obtained or will obtain the funds for any Loan or Advance in any
particular place or manner.
3.14 Failure to Charge Not Subsequent Waiver. Any decision by the
Administrative Agent or any Lender not to require payment of any interest
(including interest arising under Section 3.9), fee, cost or other amount
payable under any Loan Document, or to calculate any amount payable by a
particular method, on any occasion shall in no way limit or be deemed a waiver
of the Administrative Agent's or such Lender's right to require full payment of
any interest (including interest arising under Section 3.9), fee, cost or other
amount payable under any Loan Document, or to calculate an amount payable by
another method that is not inconsistent with this Agreement, on any other or
subsequent occasion.
3.15 Administrative Agent's Right to Assume Payments Will be
Made. Unless the Administrative Agent shall have been notified by Borrower prior
to the date on which any payment to be made by Borrower hereunder is due that
Borrower does not intend to remit such payment, the Administrative Agent may, in
its discretion, assume that Borrower has remitted such payment when so due and
the Administrative Agent may, in its discretion and in reliance upon such
assumption, make available to each Lender on such payment date an amount equal
to such Lender's share of such assumed payment. If Borrower has not in fact
remitted such payment to the Administrative Agent, each Lender shall forthwith
on demand repay to the Administrative Agent the amount of such assumed payment
made available to such Lender, together with interest thereon in respect of each
day from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid to the
Administrative Agent at the Federal Funds Rate.
3.16 Fee Determination Detail. The Administrative Agent, and any
Lender, shall provide reasonable detail to Borrower regarding the manner in
which the amount of any payment to the Administrative Agent and the Lenders, or
that Lender, under Article 3 has been determined, concurrently with demand for
such payment.
3.17 Survivability. All of Borrower's obligations under Sections
3.7 and 3.8 shall survive for the ninety (90) day period following the date on
which the Commitment is terminated and all Loans
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hereunder are fully paid, and Borrower shall remain obligated thereunder for all
claims under such Sections made by any Lender to Borrower prior to the
expiration of such period.
3.18 Substitution of Lender. If (a) the obligation of any Lender
to make Eurodollar Rate Advances has been suspended for ten (10) Banking Days or
more pursuant to Sections 3.8(c) or 3.8(d) or (b) any Lender has demanded and
been paid compensation of $5,000 or more under Section 3.7 or 3.8, Borrower
shall have the right, with the assistance of the Administrative Agent, to seek a
mutually satisfactory substitute lender or lenders (which may be one or more of
the Lenders or an Eligible Assignee) to replace such Lender. Any substitution
under this Section 3.18 may be accomplished at Borrower's option either (i) by
the replaced Lender assigning its rights and obligations hereunder to the
replacement lender or lenders pursuant to Section 11.8 at a mutually agreeable
price or (ii) by Borrower prepaying all outstanding Advances from the replaced
Lender and terminating its obligations hereunder on a date specified in a notice
delivered to the Administrative Agent and the replaced Lender at least three (3)
Banking Days before the date so specified (and compensating such Lender for any
resulting funding losses as provided in Section 3.8(e)) and concurrently the
replacement lender or lenders assuming a Pro Rata Share of the Commitment in an
amount equal to the Pro Rata Share of the Commitment being terminated and making
Advances in the same aggregate amount and having the same maturity date or
dates, respectively, as the Advances being prepaid, all pursuant to documents
reasonably satisfactory to the Administrative Agent (and in the case of any
document to be signed by the replaced Lender, reasonably satisfactory to such
Lender). Borrower must give written notice to the affected Lender and the
Administrative Agent within sixty (60) days after the applicable event described
in clauses (a) or (b) of the first sentence of this Section of its intent to
exercise its rights under this Section, and must complete the substitution
within thirty (30) days after the date of such notice. No such substitution
shall relieve Borrower of its obligations to compensate and/or indemnify the
replaced Lender as required by Sections 3.7 and 3.8 with respect to the period
before it is replaced and to pay all accrued interest, accrued fees and other
amounts owing the replaced Lender hereunder.
3.19 Accruals Under Pre-Existing Loan Documents. The accrual of
interest and fees payable by Borrower under the Pre-Existing Loan Documents
shall be calculated as provided therein through the effective date of this
Agreement. Such fees include, without limitation, those specified in Sections
3.2, 3.3 and 3.4 of the Original Loan Agreement. All such accrued interest and
fees through the effective date of this Agreement shall, notwithstanding any
provision of the Pre-Existing Loan Documents or hereunder to the contrary, be
due on the effective date of this Agreement and shall be payable immediately
upon submission of an invoice therefor to Borrower by the Administrative Agent.
Upon receipt by the Administrative Agent, all such amounts shall be promptly
distributed by the Administrative Agent in accordance with the terms of the
Pre-Existing Loan Documents.
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Article 4
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to the Lenders that:
4.1 Existence and Qualification; Power; Compliance With Laws.
Borrower is a corporation duly formed, validly existing and in good standing
under the Laws of Delaware. Borrower is duly qualified or registered to transact
business and is in good standing in Maryland and each other jurisdiction in
which the conduct of its business or the ownership or leasing of its Properties
makes such qualification or registration necessary, except where the failure so
to qualify or register and to be in good standing would not constitute a
Material Adverse Effect. Borrower has all requisite power and authority to
conduct its business, to own and lease its Properties and to execute and deliver
each Loan Document to which it is a Party and to perform its Obligations. All
outstanding shares of capital stock of Borrower are duly authorized, validly
issued, fully paid and non-assessable, and no holder thereof has any enforceable
right of rescission under any applicable state or federal securities Laws.
Borrower is in compliance with all Laws (except for Hazardous Materials Laws
which are the subject of Section 4.18) and other legal requirements applicable
to its business, has obtained all authorizations, consents, approvals, orders,
licenses and permits from, and has accomplished all filings, registrations and
qualifications with, or obtained exemptions from any of the foregoing from, any
Governmental Agency that are necessary for the transaction of its business,
except where the failure so to comply, obtain authorizations, etc., file,
register, qualify or obtain exemptions does not constitute a Material Adverse
Effect.
4.2 Authority; Compliance With Other Agreements and Instruments
and Government Regulations. The execution, delivery and performance by Borrower
and the Subsidiary Guarantors of the Loan Documents to which it is a Party have
been duly authorized by all necessary corporate action, and do not and will not:
(a) Require any consent or approval not heretofore
obtained of any partner, director, stockholder, security holder or
creditor of such Party;
(b) Violate or conflict with any provision of such Party's
charter, articles of incorporation or bylaws, as applicable;
(c) Result in or require the creation or imposition of any Lien
(other than pursuant to the Loan Documents) or Right of Others upon or
with respect to any Property now owned or leased or hereafter acquired by
such Party;
(d) Violate any Requirement of Law applicable to such Party;
(e) Result in a breach of or constitute a default under, or
cause or permit the acceleration of any obligation owed under, any
material indenture or loan or credit agreement or any other Contractual
Obligation to which such Party is a party or by which such Party or any
of its Property is bound or affected;
and such Party is not in violation of, or default under, any Requirement of Law
or Contractual Obligation, or any material indenture, loan or credit agreement
described in Section 4.2(e), in any respect that constitutes a Material Adverse
Effect.
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4.3 No Governmental Approvals Required. Except as previously
obtained or made, no authorization, consent, approval, order, license or permit
from, or filing, registration or qualification with, any Governmental Agency is
or will be required to authorize or permit under applicable Laws the execution,
delivery and performance by Borrower or any Subsidiary Guarantor of the Loan
Documents to which it is a Party.
4.4 Subsidiaries.
(a) Schedule 4.4(a) hereto correctly sets forth as of the
Closing Date the names, form of legal entity, number of shares of capital
stock issued and outstanding, number of shares owned by Borrower or a
Subsidiary of Borrower (specifying such owner) and jurisdictions of
organization of all Subsidiaries of Borrower and specifies which thereof,
as of the Closing Date, are Inactive Subsidiaries. Except as described in
Schedule 4.4(a), Borrower does not as of the Closing Date own any capital
stock, equity interest or debt security which is convertible, or
exchangeable, for capital stock or equity interest in any Person. Unless
otherwise indicated in Schedule 4.4(a), all of the outstanding shares of
capital stock, or all of the units of equity interest, as the case may
be, of each Subsidiary are owned of record and beneficially by Borrower,
there are no outstanding options, warrants or other rights to purchase
capital stock of any such Subsidiary, and all such shares or equity
interests so owned are duly authorized, validly issued, fully paid and
non-assessable, and were issued in compliance with all applicable state
and federal securities and other Laws, and are free and clear of all
Liens, except for Permitted Encumbrances.
(b) Each Subsidiary is a legal entity of the type described in
Schedule 4.4(a) duly formed, validly existing and in good standing under
the Laws of its jurisdiction of organization, is duly qualified to do
business as a foreign organization and is in good standing as such in
each jurisdiction in which the conduct of its business or the ownership
or leasing of its Properties makes such qualification necessary (except
where the failure to be so duly qualified and in good standing does not
constitute a Material Adverse Effect), and has all requisite power and
authority to conduct its business and to own and lease its Properties.
(c) Except as described in Schedule 4.4(c), each Subsidiary
is in compliance with all Laws (except for Hazardous Materials Laws which
are the subject of Section 4.18) and other requirements applicable to its
business and has obtained all authorizations, consents, approvals,
orders, licenses, and permits from, and each such Subsidiary has
accomplished all filings, registrations, and qualifications with, or
obtained exemptions from any of the foregoing from, any Governmental
Agency that are necessary for the transaction of its business, except
where the failure to be in such compliance, obtain such authorizations,
consents, approvals, orders, licenses, and permits, accomplish such
filings, registrations, and qualifications, or obtain such exemptions,
does not constitute a Material Adverse Effect.
4.5 Financial Statements. Borrower has furnished to the Lenders
(a) the audited financial statements of Borrower for the Fiscal Year ended June
30, 1999 and (b) the unaudited balance sheet and statement of operations of
Borrower for the Fiscal Quarter ended March 31, 2000. The financial statements
described in clause (a) fairly present in all material respects the financial
condition, results of operations and changes in financial position of Borrower,
and the balance sheet and statement of operations described in clause (b) fairly
present the financial condition and results of operations of Borrower as of such
dates and for such periods in conformity with GAAP consistently applied (except
as otherwise indicated in the notes thereto), subject only to normal year-end
accruals and audit adjustments.
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4.6 No Other Liabilities; No Material Adverse Changes. Borrower
and its Subsidiaries do not have any material liability or material contingent
liability required under GAAP to be reflected or disclosed, and not reflected or
disclosed, in the balance sheet described in Section 4.5(c), other than
liabilities and contingent liabilities arising in the ordinary course of
business since the date of such financial statements. As of the Closing Date, no
circumstance or event has occurred that constitutes a Material Adverse Effect
since June 30, 1999, except as set forth in Schedule 4.6.
4.7 Title to and Location of Property. Borrower and its
Subsidiaries have valid title to the Property (other than assets which are the
subject of a Capital Lease Obligation) reflected in the balance sheet described
in Section 4.5(c), other than (a) items of Property or exceptions to title which
are in each case immaterial and Property subsequently sold or disposed of in the
ordinary course of business and (b) uranium inventory owned by customers of
Borrower or its Subsidiaries for which a corresponding liability in favor of
such customers is reflected in such balance sheet. Such Property is free and
clear of all Liens and Rights of Others, other than Liens or Rights of Others
described in Schedule 4.7 and Permitted Encumbrances and Permitted Rights of
Others.
4.8 Intellectual Property. Except as set forth in Schedule 4.8,
Borrower and its Subsidiaries own, or possess the right to use to the extent
necessary in their respective businesses, all trademarks, service marks, trade
names, copyrights, patents, patent rights and related registrations and
applications that are used in and are material to the conduct of their
businesses as now operated, and no such intellectual property, to the best
knowledge of Borrower, conflicts with the valid trademark, service mark, trade
name, copyright, patent or patent right of any other Person to the extent that
such conflict constitutes a Material Adverse Effect.
4.9 Public Utility Holding Company Act. Neither Borrower nor any
of its Subsidiaries is a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
4.10 Litigation. Except for (a) any matter fully covered as to
subject matter and amount (subject to applicable deductibles and retentions) by
insurance for which the insurance carrier has not asserted lack of subject
matter coverage or reserved its right to do so, (b) any matter, or series of
related matters, involving a claim against Borrower or any of its Subsidiaries
or Predecessor of less than $1,000,000, (c) matters involving a claim against
Predecessor for which neither Borrower nor any of its Subsidiaries will be
liable subsequent to Privatization, (d) matters of an administrative nature not
involving a claim or charge against Borrower or any of its Subsidiaries or
Predecessor, (e) matters involving a claim under Hazardous Materials Laws which
are the subject of Section 4.18 and (f) matters set forth in Schedule 4.10,
there are no actions, suits, proceedings or investigations pending as to which
Borrower or any of its Subsidiaries or Predecessor have been served or have
received notice or, to the best knowledge of Borrower, threatened against or
affecting Borrower or any of its Subsidiaries or Predecessor or any Property of
any of them before any Governmental Agency.
4.11 Binding Obligations. Each of the Loan Documents to which
Borrower and any Subsidiary Guarantor is a Party will, when executed and
delivered by such Party, constitute the legal, valid and binding obligation of
such Party, enforceable against such Party in accordance with its terms, except
as enforcement may be limited by Debtor Relief Laws or equitable principles
relating to the granting of specific performance and other equitable remedies as
a matter of judicial discretion.
4.12 No Default. No event has occurred and is continuing
that is a Default or Event of Default.
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4.13 ERISA.
(a) With respect to each Pension Plan:
(i) such Pension Plan complies in all material respects
with ERISA and any other applicable Laws to the extent that
noncompliance could reasonably be expected to have a Material
Adverse Effect;
(ii) such Pension Plan has not incurred any "accumulated
funding deficiency" (as defined in Section 302 of ERISA) that
could reasonably be expected to have a Material Adverse Effect;
(iii) no "reportable event" (as defined in Section 4043 of
ERISA, but excluding such events as to which the PBGC has by
regulation waived the requirement therein contained that it be
notified within thirty days of the occurrence of such event) has
occurred that could reasonably be expected to have a Material
Adverse Effect; and
(iv) neither Borrower nor any of its Subsidiaries has
engaged in any non-exempt "prohibited transaction" (as defined in
Section 4975 of the Code) that could reasonably be expected to
have a Material Adverse Effect.
(b) Neither Borrower nor any of its Subsidiaries has incurred
or expects to incur any withdrawal liability to any Multiemployer Plan
that could reasonably be expected to have a Material Adverse Effect.
4.14 Regulation U; Investment Company Act. No part of the proceeds
of any Loan hereunder will be used to purchase or carry, or to extend credit to
others for the purpose of purchasing or carrying, any Margin Stock in violation
of Regulation U. Neither Borrower nor any of its Subsidiaries is or is required
to be registered as an "investment company" under the Investment Company Act of
1940.
4.15 Disclosure. No written statement made by a Senior Officer to
the Administrative Agent or any Lender in connection with this Agreement, or in
connection with any Loan, taken as a whole with other written statements
concurrently or theretofore made, as of the date thereof contained any untrue
statement of a material fact or omitted a material fact necessary to make the
statement made not misleading in light of all the circumstances existing at the
date the statement was made.
4.16 Tax Liability. Borrower and its Subsidiaries have filed all
tax returns which are required to be filed, such returns are true, complete,
correct and in compliance with applicable Laws and Borrower and its Subsidiaries
have paid, or made provision for the payment of, all taxes shown to be due and
payable in said returns, or pursuant to any written assessment received by
Borrower or any of its Subsidiaries, except (a) such tax returns, taxes, fees or
other charges the amount or validity of which are being contested in good faith
by appropriate proceedings and as to which adequate reserves in respect to the
reasonably anticipated liability have been established and maintained and (b)
such returns or taxes which, if not filed or paid, would not constitute a
Material Adverse Effect.
4.17 [Intentionally Omitted].
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4.18 Hazardous Materials. Except as described in Schedule 4.18,
as of the Closing Date (a) neither Borrower nor any of its Subsidiaries or
Predecessor at any time has disposed of, discharged, released or threatened the
release of any Hazardous Materials on, from or under the Real Property in
violation of any Hazardous Materials Law that would individually or in the
aggregate constitute a Material Adverse Effect, (b) to the best knowledge of
Borrower, no condition exists that violates any Hazardous Material Law affecting
any Real Property except for such violations that would not individually or in
the aggregate constitute a Material Adverse Effect, (c) no Real Property or any
portion thereof is or has been utilized by Borrower or any of its Subsidiaries
or Predecessor as a site for the manufacture of any Hazardous Materials and (d)
to the extent that any Hazardous Materials are used, generated or stored by
Borrower or any of its Subsidiaries or Predecessor on any Real Property, or
transported to or from such Real Property by Borrower or any of its
Subsidiaries, such use, generation, storage and transportation are in compliance
with all Hazardous Materials Laws except for such non-compliance that would not
constitute a Material Adverse Effect or be materially adverse to the interests
of the Lenders.
4.19 Solvency. On the Closing Date, giving effect to all
transactions occurring on that date, each of Borrower and USEC (Delaware) is
Solvent.
4.20 [Intentionally Omitted].
4.21 [Intentionally Omitted].
4.22 [Intentionally Omitted].
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Article 5
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)
So long as any Advance remains unpaid, or any other Obligation
remains unpaid, or any portion of the Commitment remains in force, Borrower
shall, and shall cause its Subsidiaries to, unless the Administrative Agent
(with the written approval of the Requisite Lenders) otherwise consents:
5.1 Payment of Taxes and Other Potential Liens. Pay and discharge
promptly all taxes, assessments and governmental charges or levies imposed upon
any of them, upon their respective Property or any part thereof and upon their
respective income or profits or any part thereof, except that Borrower and its
Subsidiaries shall not be required to pay or cause to be paid (a) any tax,
assessment, charge or levy that is not yet past due, or is being contested in
good faith by appropriate proceedings so long as the relevant entity has
established and maintains adequate reserves in respect of the reasonably
anticipated liability for the payment of the same or (b) such taxes which, if
not paid, would not constitute a Material Adverse Effect.
5.2 Preservation of Existence. Preserve and maintain their
respective existences in the jurisdiction of their formation and all material
authorizations, rights, franchises, privileges, consents, approvals, orders,
licenses, permits, or registrations from any Governmental Agency that are
necessary for the transaction of their respective business and qualify and
remain qualified to transact business in each jurisdiction in which such
qualification is necessary in view of their respective business or the ownership
or leasing of their respective Properties except (a) a merger permitted by
Section 6.2 or as otherwise permitted by this Agreement and (b) where the
failure to so qualify or remain qualified would not constitute a Material
Adverse Effect.
5.3 Maintenance of Properties. Maintain, preserve and protect all
of their respective Properties in good order and condition, subject to wear and
tear in the ordinary course of business, and not permit any waste of their
respective Properties, except that the failure to maintain, preserve and protect
a particular item of Property that is at the end of its useful life or that is
not of significant value, either intrinsically or to the operations of Borrower,
shall not constitute a violation of this covenant.
5.4 Maintenance of Insurance. Maintain liability, casualty and
other insurance (subject to customary deductibles and retentions) with
responsible insurance companies in such amounts and against such risks as is
carried by responsible companies engaged in similar businesses and owning
similar assets in the general areas in which Borrower and its Subsidiaries
operate.
5.5 Compliance With Laws. Comply with all Requirements of Law
noncompliance with which constitutes a Material Adverse Effect, except that
Borrower and its Subsidiaries need not comply with a Requirement of Law then
being contested by any of them in good faith by appropriate proceedings.
5.6 Inspection Rights. Upon reasonable notice, at any time during
regular business hours and as often as reasonably requested (but not so as to
materially interfere with the business of Borrower or any of its Subsidiaries)
permit the Administrative Agent or any Lender, or any authorized employee, agent
or representative thereof, to examine, audit and make copies and abstracts from
the records and books of account of, and to visit and inspect the Properties of,
Borrower and its Subsidiaries and to discuss the affairs, finances and accounts
of Borrower and its Subsidiaries with any of their officers, key employees or
accountants, subject in each case to compliance with applicable Laws; provided
that Borrower and its Subsidiaries shall not be obligated to provide any
information that is "classified" under applicable Laws.
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5.7 Keeping of Records and Books of Account. Keep adequate records
and books of account reflecting all financial transactions in conformity with
GAAP, consistently applied, and in material conformity with all applicable
requirements of any Governmental Agency having regulatory jurisdiction over
Borrower and its Subsidiaries.
5.8 Compliance With Agreements. Promptly and fully comply with all
Contractual Obligations to which any one or more of them is a party, except for
any such Contractual Obligations (a) the performance of which would cause a
Default or (b) if the failure to comply does not constitute a Material Adverse
Effect.
5.9 Use of Proceeds. Use the proceeds of Loans to provide working
capital and to fund general corporate purposes.
5.10 Hazardous Materials Laws. Keep and maintain all Real Property
and each portion thereof in compliance in all material respects with all
applicable Hazardous Materials Laws and promptly notify the Administrative Agent
in writing (attaching a copy of any pertinent written material) of (a) any and
all material enforcement, cleanup, removal or other governmental or regulatory
actions instituted, completed or threatened in writing by a Governmental Agency
pursuant to any applicable Hazardous Materials Laws, (b) any and all material
claims made or threatened in writing by any Person against Borrower relating to
damage, contribution, cost recovery, compensation, loss or injury resulting from
any Hazardous Materials and (c) discovery by any Senior Officer of any of
Borrower of any material occurrence or condition on any real Property adjoining
or in the vicinity of such Real Property that could reasonably be expected to
cause such Real Property or any part thereof to be subject to any restrictions
on the ownership, occupancy, transferability or use of such Real Property under
any applicable Hazardous Materials Laws.
5.11 Future Subsidiaries. Cause any Subsidiary (other than an
Inactive Subsidiary), formed or acquired after the Closing Date to execute and
deliver an appropriate joinder to the Subsidiary Guaranty.
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Article 6
NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any other Obligation
remains unpaid, or any portion of the Commitment remains in force, Borrower
shall not, and shall not permit any of its Subsidiaries to, unless the
Administrative Agent (with the written approval of the Requisite Lenders or, if
required by Section 11.2, of all of the Lenders) otherwise consents:
6.1 Disposition of Property. Make any Disposition of its Property,
whether now owned or hereafter acquired, (a) except a Disposition by Borrower to
a Wholly-Owned Subsidiary, or by a Subsidiary to Borrower or a Wholly-Owned
Subsidiary and (b) a Disposition for which the Net Cash Sales Proceeds, when
added to the aggregate Net Cash Sales Proceeds of all Dispositions made during
that Fiscal Year, does not exceed an amount equal to 10% of the book value of
consolidated total assets of Borrower and its Subsidiaries as of the last day of
the immediately preceding Fiscal Year.
6.2 Mergers. Merge or consolidate with or into any Person, except
(a) mergers and consolidations of a Subsidiary of Borrower into Borrower or a
Wholly-Owned Subsidiary or of Subsidiaries with each other and (b) a merger or
consolidation of a Person into Borrower or with or into a Wholly-Owned
Subsidiary of Borrower which constitutes an acquisition permitted by Section
6.3; provided that (i) Borrower or a Wholly-Owned Subsidiary is the surviving
entity, (ii) no Change in Control results therefrom, (iii) no Default or Event
of Default then exists or would result therefrom and (iv) Borrower and each of
the Subsidiary Guarantors execute such amendments to the Loan Documents as the
Administrative Agent may reasonably determine are appropriate as a result of
such merger.
6.3 Hostile Acquisitions. Directly or indirectly use the proceeds
of any Loan in connection with the acquisition of part or all of a voting
interest of five percent (5%) or more in any corporation or other business
entity if such acquisition is opposed by the board of directors of such
corporation or business entity.
6.4 Distributions. Make any Distribution, whether from capital,
income or otherwise, and whether in Cash or other Property, subsequent to the
Privatization except:
(a) Distributions by any Subsidiary of Borrower to Borrower or
any Wholly-Owned Subsidiary;
(b) dividends payable on Common Stock; and
(c) repurchases of Common Stock; provided that no Default or
Event of Default then exists or would result therefrom.
6.5 ERISA. At any time, permit any Pension Plan to: (i) engage in
any non-exempt "prohibited transaction" (as defined in Section 4975 of the
Code); (ii) fail to comply with ERISA or any other applicable Laws; (iii) incur
any material "accumulated funding deficiency" (as defined in Section 302 of
ERISA); (iv) terminate in any manner, which, with respect to each event listed
above, could reasonably be expected to result in a Material Adverse Effect; or
(v) withdraw, completely or partially, from any Multiemployer Plan if to do so
could reasonably be expected to result in a Material Adverse Effect.
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6.6 Change in Nature of Business. Make any material change in the
nature of the business of Borrower and its Subsidiaries, taken as a whole;
provided that the development and commercialization of an advanced uranium
enrichment technology as described in the Registration Statement shall not be
deemed a material change in such business.
6.7 Liens and Negative Pledges. Create, incur, assume or suffer to
exist any Lien or Negative Pledge of any nature upon or with respect to any of
their respective Properties, or engage in any sale and leaseback transaction
with respect to any of their respective Properties, whether now owned or
hereafter acquired, except:
(a) Liens and Negative Pledges existing on the Closing Date
and disclosed in Schedule 4.7 and any renewals/extensions or amendments
thereof, provided that the obligations secured or benefited thereby are
not increased;
(b) Liens and Negative Pledges under the Loan Documents;
(c) Permitted Encumbrances;
(d) Liens on Property acquired by Borrower or any of its
Subsidiaries that were in existence at the time of the acquisition of
such Property and were not created in contemplation of such acquisition;
(e) Liens (to the extent that such arrangements constitute a
Lien) on uranium inventory owned by customers of Borrower but held by
Borrower for which there exists a corresponding liability of Borrower in
favor of such customers; and
(f) Liens not otherwise described above on Property having a
book value or fair market value not in excess of ten percent (10%) of
Stockholders' Equity of Borrower and its Subsidiaries as of the last day
of the immediately preceding Fiscal Year.
6.8 Transactions with Affiliates. Enter into any transaction of any
kind with any Affiliate of Borrower other than (a) salary, bonus, employee stock
option and other compensation arrangements with directors or officers in the
ordinary course of business, (b) transactions that are fully disclosed to the
board of directors (or executive committee thereof) of Borrower and expressly
authorized by a resolution of the board of directors (or executive committee) of
Borrower which is approved by a majority of the directors (or executive
committee) not having an interest in the transaction, (c) transactions between
or among Borrower and its Subsidiaries and (d) transactions on overall terms at
least as favorable to Borrower or its Subsidiaries as would be the case in an
arm's-length transaction between unrelated parties of equal bargaining power.
6.9 Stockholders' Equity. Permit Stockholders' Equity, as of the
last day of any Fiscal Quarter, to be less than the sum of (a) $832,500,000 plus
(b) 35% of Net Income in the Fiscal Quarter ending September 30, 1998 and each
Fiscal Quarter thereafter (with no deduction for a net loss in any such Fiscal
Quarter) plus (c) 50% of the proceeds of any issuance by Borrower of equity
securities (except to employees or former employees of Borrower pursuant to an
employee stock option plan maintained by Borrower) subsequent to the Reference
Date.
6.10 Capitalization Ratio. Permit, as of the last day of any
Fiscal Quarter, the ratio of (a) all Indebtedness of Borrower and its
Subsidiaries on that date to (b) Total Capitalization on that date to exceed
0.55 to 1.00.
6.11 Investments. Make or suffer to exist any Investment, other
than:
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(a) Investments in existence on the Closing Date and disclosed
on Schedule 6.11;
(b) Investments consisting of Cash Equivalents;
(c) Investments consisting of advances to officers, directors
and employees of Borrower and its Subsidiaries for travel, entertainment,
relocation, anticipated bonus and analogous ordinary business purposes;
(d) Investments in Wholly-Owned Subsidiaries;
(e) Investments consisting of the extension of credit to
customers or suppliers of Borrower and its Subsidiaries in the ordinary
course of business and any Investments received in satisfaction or
partial satisfaction thereof;
(f) Investments received in connection with the settlement of a
bona fide dispute with another Person;
(g) Investments representing all or a portion of the
sales price of Property sold or services provided to another Person;
(h) Investments consisting of advances to the vendor under the
Russian HEU Contract (as such term is defined in the Registration
Statement) and other advances in the ordinary course of business to
vendors against purchases of inventory which Borrower is obligated to
purchase in the future;
(i) Investments in joint ventures to develop advanced uranium
enrichment technologies generally consistent in amounts and timing to
those described in Borrower's Strategic Plan dated September, 1997; and
(j) Investments not described above not in excess of an amount
equal to 15% of the consolidated total assets of Borrower and its
Subsidiaries as of the last day of the immediately preceding Fiscal
Quarter outstanding at any time.
6.12 Subsidiary Indebtedness. Permit any Subsidiary of Borrower to
create, incur, assume or suffer to exist any Indebtedness or Guaranty
Obligation, except (a) Indebtedness and Guaranty Obligations in existence on the
Closing Date, (b) the Subsidiary Guaranty, (c) Indebtedness owed to Borrower or
another Subsidiary of Borrower, (d) Capital Lease Obligations and purchase money
obligations of a Subsidiary in respect of Property used by that Subsidiary, (e)
the Subsidiary Guaranty (as such term is defined in the Other Loan Agreement)
and (f) other Indebtedness not described above not in excess of $100,000,000
outstanding at any time.
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Article 7
INFORMATION AND REPORTING REQUIREMENTS
7.1 Financial and Business Information. So long as any Advance
remains unpaid, or any other Obligation remains unpaid, or any portion of the
Commitment remains in force, Borrower shall, unless the Administrative Agent
(with the written approval of the Requisite Lenders) otherwise consents, at
Borrower's sole expense, deliver to the Administrative Agent for distribution by
it to the Lenders, a sufficient number of copies for all of the Lenders of the
following:
(a) [Intentionally Omitted];
(b) [Intentionally Omitted];
(c) As soon as practicable, and in any event within 45 days
after the end of each Fiscal Quarter (other than the fourth Fiscal
Quarter in any Fiscal Year), the consolidated balance sheet of Borrower
and its Subsidiaries as at the end of such Fiscal Quarter and the
consolidated statements of income and cash flows for such Fiscal Quarter,
and the portion of the Fiscal Year ended with such Fiscal Quarter, all in
reasonable detail. Such financial statements shall be certified by the
chief financial officer of Borrower as fairly presenting the financial
condition, results of operations and cash flows of Borrower and its
Subsidiaries in accordance with GAAP (other than footnote disclosures),
consistently applied, as at such date and for such periods, subject only
to normal year-end accruals and audit adjustments;
(d) As soon as practicable, and in any event within 90 days
after the end of each Fiscal Year, the consolidated balance sheet of
Borrower and its Subsidiaries as at the end of such Fiscal Year and the
consolidated statements of income and cash flows, in each case of
Borrower and its Subsidiaries for such Fiscal Year, all in reasonable
detail. Such financial statements shall be prepared in accordance with
GAAP, consistently applied, and shall be accompanied by a report of
Arthur Andersen LLP or other independent public accountants of recognized
standing, which report shall be prepared in accordance with generally
accepted auditing standards as at such date, and shall not be subject to
any qualifications or exceptions as to the scope of the audit nor to any
other qualification or exception determined by the Requisite Lenders in
their good faith business judgment to be adverse to the interests of the
Lenders;
(e) Promptly after the same are available, and in any event
within five (5) Banking Days after filing with the Securities and
Exchange Commission, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of
Borrower, and copies of all annual, regular, periodic and special reports
and registration statements which Borrower may file or be required to
file with the Securities and Exchange Commission under Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended, and not
otherwise required to be delivered to the Lenders pursuant to other
provisions of this Section 7.1;
(f) Promptly after request by the Administrative Agent or any
Lender, copies of any other report or other document that was filed by
Borrower with any Governmental Agency; provided that neither Borrower nor
any of its Subsidiaries shall be obligated to provide any information
that is "classified" under applicable Laws;
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(g) Promptly upon a Senior Officer becoming aware, and in any
event within ten (10) Banking Days after becoming aware, of the
occurrence of any (i) "reportable event" (as such term is defined in
Section 4043 of ERISA, but excluding such events as to which the PBGC has
by regulation waived the requirement therein contained that it be
notified within thirty days of the occurrence of such event) or (ii)
non-exempt "prohibited transaction" (as such term is defined in Section
406 of ERISA or Section 4975 of the Code) involving any Pension Plan or
any trust created thereunder, telephonic notice specifying the nature
thereof, and, no more than two (2) Banking Days after such telephonic
notice, written notice again specifying the nature thereof and specifying
what action Borrower is taking or proposes to take with respect thereto,
and, when known, any action taken by the Internal Revenue Service with
respect thereto;
(h) As soon as practicable, and in any event within two (2)
Banking Days after a Senior Officer becomes aware of the existence of any
condition or event which constitutes a Default or Event of Default,
telephonic notice specifying the nature and period of existence thereof,
and, no more than two (2) Banking Days after such telephonic notice,
written notice again specifying the nature and period of existence
thereof and specifying what action Borrower is taking or proposes to take
with respect thereto;
(i) Promptly upon a Senior Officer becoming aware that (i) any
Person has commenced a legal proceeding with respect to a claim against
Borrower that is $5,000,000 or more in excess of the amount thereof that
is fully covered by insurance, (ii) any creditor under a credit agreement
involving Indebtedness of $5,000,000 or more or any lessor under a lease
involving aggregate rent of $5,000,000 or more has asserted a default
thereunder on the part of Borrower or, (iii) any Person has commenced a
legal proceeding with respect to a claim against Borrower under a
contract that is not a credit agreement or material lease with respect to
a claim of in excess of $5,000,000 or which otherwise may reasonably be
expected to result in a Material Adverse Effect, a written notice
describing the pertinent facts relating thereto and what action Borrower
is taking or proposes to take with respect thereto;
(j) Promptly upon a Senior Officer becoming aware of a change
in the credit rating given by S&P or Moody's to Borrower's long term
senior unsecured non-credit enhanced debt, written notice thereof; and
(k) Such other data and information as from time to time may be
reasonably requested by the Administrative Agent, any Lender (through the
Administrative Agent) or the Requisite Lenders; provided that neither
Borrower nor any of its Subsidiaries shall be obligated to provide any
information that is "classified" under applicable Laws.
7.2 Compliance Certificates. So long as any Advance remains unpaid,
or any other Obligation remains unpaid or unperformed, or any portion of any of
the Commitments remains outstanding, Borrower shall, at Borrower's sole expense,
deliver to the Administrative Agent for distribution by it to the Lenders
concurrently with the financial statements required pursuant to Sections 7.1(c)
and 7.1(d), a Compliance Certificate signed by a Senior Officer.
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Article 8
CONDITIONS
8.1 Initial Advances. The effectiveness of this Agreement as an
amendment and restatement of the Original Loan Agreement, and the effectiveness
of the other Loan Documents as amendments and restatements of the other
Pre-Existing Loan Documents, and the obligation of each Lender to make the
initial Advance to be made by it and, if applicable, to make or accept an
Adjusting Purchase Payment, are subject to the following conditions precedent,
each of which must be satisfied unless all of the Lenders, in their sole and
absolute discretion, shall agree otherwise:
(a) The Administrative Agent shall have received all of the
following, each of which shall be originals unless otherwise specified,
each properly executed by a Responsible Official of each party thereto,
each dated as of the Closing Date and each in form and substance
satisfactory to the Administrative Agent and its legal counsel (unless
otherwise specified or, in the case of the date of any of the following,
unless the Administrative Agent otherwise agrees or directs):
(1) at least one (1) executed counterpart of this
Agreement, together with arrangements satisfactory to the
Administrative Agent for additional executed counterparts,
sufficient in number for distribution to the Lenders and Borrower;
(2) Notes executed by Borrower in favor of each Lender,
each in a principal amount equal to that Lender's Pro Rata Share of
the Commitment;
(3) [Intentionally Omitted];
(4) [Intentionally Omitted];
(5) [Intentionally Omitted];
(6) the Subsidiary Guaranty executed by the
Subsidiary Guarantors;
(7) with respect to Borrower and the Subsidiary
Guarantors, such documentation as the Administrative Agent may
reasonably require to establish the due organization, valid
existence and good standing of Borrower and the Subsidiary
Guarantors, their qualification to engage in business in each
material jurisdiction in which they are engaged in business or
required to be so qualified, their authority to execute, deliver and
perform the Loan Documents to which it is a Party, the identity,
authority and capacity of each Responsible Official thereof
authorized to act on its behalf, including certified copies of
articles of incorporation and amendments thereto, bylaws and
amendments thereto, certificates of good standing and/or
qualification to engage in business, tax clearance certificates,
certificates of corporate resolutions, incumbency certificates,
Certificates of Responsible Officials, and the like;
(8) the Opinion of Counsel;
(9) [Intentionally Omitted];
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(10) [Intentionally Omitted];
(11) [Intentionally Omitted];
(12) a Certificate of the chief financial officer of
Borrower certifying that the conditions specified in Sections 8.1(f)
and 8.1(g) have been satisfied; and
(13) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent or the Requisite
Lenders reasonably may require.
(b) The fees payable on the Closing Date pursuant to Section
3.2 shall have been paid, and any accrued interest and fees under the
Pre-Existing Loan Documents shall have been paid as specified in Section
3.19.
(c) There shall not have occurred any event or condition that,
in the good faith judgment of the Administrative Agent and the Lead
Arranger, constitutes a material disruption of, or material adverse
change in the conditions in, the financial, banking or capital markets in
connection with the syndication of the Facility.
(d) [Intentionally Omitted].
(e) The reasonable costs and expenses of the Administrative
Agent in connection with the preparation of the Loan Documents payable
pursuant to Section 11.3, and invoiced to Borrower prior to the Closing
Date, shall have been paid.
(f) The representations and warranties of Borrower contained
in Article 4 shall be true and correct in all material respects.
(g) Borrower shall be in compliance with all the terms and
provisions of the Loan Documents, and giving effect to the initial
Advance, no Default or Event of Default shall have occurred and be
continuing.
(h) All legal matters relating to the Loan Documents shall be
satisfactory to Sheppard, Mullin, Richter & Hampton LLP, special counsel
to the Administrative Agent.
(i) The Closing Date shall have occurred on or before July 25,
2000.
(j) The Borrower shall not have exercised its election under
Section 3.1(d)(vi) of the Original Loan Agreement to covert the "Loans"
(as defined thereunder) to a term loan.
8.2 Any Advance. The obligation of each Lender to make any Advance
is subject to the following conditions precedent (unless the Requisite Lenders
or, in any case where the approval of all of the Lenders is required pursuant to
Section 11.2, all of the Lenders, in their sole and absolute discretion, shall
agree otherwise):
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(a) except (i) for representations and warranties which
expressly speak as of a particular date or are no longer true and correct
as a result of a change which is permitted by this Agreement or (ii) as
disclosed by Borrower and approved in writing by the Requisite Lenders,
the representations and warranties contained in Article 4 (other than
Sections 4.4(a), 4.6 (first sentence), 4.10 and 4.17) shall be true and
correct in all material respects on and as of the date of the Advance as
though made on that date;
(b) no circumstance or event shall have occurred that
constitutes a Material Adverse Effect since the Closing Date; provided,
that this clause (b) shall not apply at any time that the Facility is
explicitly in support of authorized or outstanding commercial paper of
Borrower;
(c) other than matters described in Schedule 4.10 or not
required as of the Closing Date to be therein described, there shall not
be then pending or threatened any action, suit, proceeding or
investigation against or affecting Borrower or any of its Subsidiaries or
any Property of any of them before any Governmental Agency that
constitutes a Material Adverse Effect;
(d) the Administrative Agent shall have timely received a
Request for Loan in compliance with Article 2; and
(e) the Administrative Agent shall have received, in form and
substance satisfactory to the Administrative Agent, such other
assurances, certificates, documents or consents related to the foregoing
as the Administrative Agent or Requisite Lenders reasonably may require.
8.3 Return of Pre-Existing Notes. Upon the effectiveness of this
Agreement, including the delivery by Borrower of all documents required under
Section 8.1, the Lenders holding the Pre-Existing Notes shall return them to
Borrower, in each case marked "Canceled and Replaced."
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Article 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
9.1 Events of Default. The existence or occurrence of any one or
more of the following events, whatever the reason therefor and under any
circumstances whatsoever, shall constitute an Event of Default:
(a) Borrower fails to pay any principal on any of the Notes, or
any portion thereof, on the date when due; or
(b) Borrower fails to pay any interest on any of the Notes, or
any fees under Sections 3.2, 3.3 or 3 .4 or any portion thereof, within
five (5) days after the date when due; or fails to pay any other fee or
amount payable to the Lenders under any Loan Document, or any portion
thereof, within two (2) Banking Days after demand therefor; or
(c) Borrower fails to comply with any of the covenants
contained in Article 6; or
(d) Borrower fails to comply with Section 7.1(i) in any
respect that is materially adverse to the interests of the Lenders; or
(e) Borrower or any other Party fails to perform or observe
any other covenant or agreement (not specified in clause (a), (b), (c) or
(d) above) contained in any Loan Document on its part to be performed or
observed within twenty (20) Banking Days after the giving of notice by
the Administrative Agent on behalf of the Requisite Lenders of such
Default or, if such Default is not reasonably susceptible of cure within
such period, within such longer period as is reasonably necessary to
effect a cure so long as such Borrower or such Party continues to
diligently pursue cure of such Default but not in any event in excess of
forty (40) Banking Days; or
(f) Any representation or warranty of Borrower or any other
Party made in any Loan Document, or in any certificate or other writing
delivered by Borrower or such Party pursuant to any Loan Document, proves
to have been incorrect when made or reaffirmed in any respect that is
materially adverse to the interests of the Lenders; or
(g) Borrower or any Subsidiary Guarantor (i) fails to pay the
principal, or any principal installment, of any present or future
Indebtedness of $10,000,000 or more, or any guaranty of present or future
Indebtedness of $10,000,000 or more, on its part to be paid, when due (or
within any stated grace period), whether at the stated maturity, upon
acceleration, by reason of required prepayment or otherwise or (ii) fails
to perform or observe any other term, covenant or agreement on its part
to be performed or observed, or suffers any event of default to occur, in
connection with any present or future Indebtedness of $10,000,000 or
more, or of any guaranty of present or future Indebtedness of $10,000,000
or more, if as a result of such failure or sufferance any holder or
holders thereof (or an agent or trustee on its or their behalf) has the
right to declare such Indebtedness due before the date on which it
otherwise would become due or the right to require Borrower or the
Subsidiary Guarantor to redeem or purchase, or offer to redeem or
purchase, all or any portion of such Indebtedness; or
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(h) Any Loan Document, at any time after its execution and
delivery and for any reason other than the agreement or action (or
omission to act) of the Administrative Agent or the Lenders or
satisfaction in full of all the Obligations, ceases to be in full force
and effect or is declared by a court of competent jurisdiction to be null
and void, invalid or unenforceable in any respect which is materially
adverse to the interests of the Lenders; or any Party thereto denies in
writing that it has any or further liability or obligation under any Loan
Document, or purports to revoke, terminate or rescind same; or
(i) A final judgment against Borrower or any Subsidiary
Guarantor is entered for the payment of money in excess of $5,000,000
(not covered by insurance or for which an insurer has reserved its
rights) and, absent procurement of a stay of execution, such judgment
remains unsatisfied for thirty (30) calendar days after the date of entry
of judgment, or in any event later than five (5) days prior to the date
of any proposed sale thereunder; or any writ or warrant of attachment or
execution or similar process is issued or levied against all or any
material part of the Property of Borrower or any Subsidiary Guarantor and
is not released, vacated or fully bonded within thirty (30) calendar days
after its issue or levy; or
(j) Borrower or any Subsidiary Guarantor institutes or consents
to the institution of any proceeding under a Debtor Relief Law relating
to it or to all or any material part of its Property, or is unable or
admits in writing its inability to pay its debts as they mature, or makes
an assignment for the benefit of creditors; or applies for or consents to
the appointment of any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer for it or for all or any
material part of its Property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed
without the application or consent of that Person and the appointment
continues undischarged or unstayed for sixty (60) calendar days; or any
proceeding under a Debtor Relief Law relating to any such Person or to
all or any part of its Property is instituted without the consent of that
Person and continues undismissed or unstayed for sixty (60) calendar
days; or
(k) The occurrence of an Event of Default (as such term is or
may hereafter be specifically defined in any other Loan Document in
existence on the Closing Date) under any other Loan Document; or
(l) Any Pension Plan maintained by Borrower is finally
determined by the PBGC to have a material "accumulated funding
deficiency" as that term is defined in Section 302 of ERISA in excess of
an amount equal to 5% of the consolidated total assets of Borrower as of
the most-recently ended Fiscal Quarter; or
(m) The Nuclear Regulatory Commission or other Governmental
Authority takes any action that restricts the operation of Borrower and
its Subsidiaries such that Borrower or its Subsidiary is or will be
unable to make scheduled deliveries under customer contracts the payments
for which would exceed 10% of the projected gross revenues of Borrower
and its Subsidiaries over the next twelve (12) consecutive months; or
(n) The Requisite Lenders determine in good faith that a
circumstance or event has occurred that constitutes a Material Adverse
Effect; provided, that this clause (n) shall not apply at any time that
the Facility is explicitly in support of authorized or outstanding
commercial paper of Borrower; or
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(o) The occurrence of an Event of Default (as such term is
defined in the Other Loan Agreement) under the Other Loan Agreement.
9.2 Remedies Upon Event of Default. Without limiting any other
rights or remedies of the Administrative Agent or the Lenders provided for
elsewhere in this Agreement, or the other Loan Documents, or by applicable Law,
or in equity, or otherwise:
(a) Upon the occurrence, and during the continuance, of any
Event of Default other than an Event of Default described in Section
9.1(j):
(1) the Commitment to make Advances and all other
obligations of the Administrative Agent or the Lenders and all
rights of Borrower and any other Parties under the Loan Documents
shall be suspended without notice to or demand upon Borrower, which
are expressly waived by Borrower, except that all of the Lenders or
the Requisite Lenders (as the case may be, in accordance with
Section 11.2) may waive an Event of Default or, without waiving,
determine, upon terms and conditions satisfactory to the Lenders or
Requisite Lenders, as the case may be, to reinstate the Commitment
and such other obligations and rights and make further Advances,
which waiver or determination shall apply equally to, and shall be
binding upon, all the Lenders;
(2) [Intentionally Omitted]; and
(3) the Requisite Lenders may request the Administrative
Agent to, and the Administrative Agent thereupon shall, terminate
the Commitment and/or declare all or any part of the unpaid
principal of all Notes, all interest accrued and unpaid thereon and
all other amounts payable under the Loan Documents to be forthwith
due and payable, whereupon the same shall become and be forthwith
due and payable, without protest, presentment, notice of dishonor,
demand or further notice of any kind, all of which are expressly
waived by Borrower.
(b) Upon the occurrence of any Event of Default described
in Section 9.1(j):
(1) the Commitment to make Advances and all other
obligations of the Administrative Agent or the Lenders and all
rights of Borrower and any other Parties under the Loan Documents
shall terminate without notice to or demand upon Borrower, which are
expressly waived by Borrower, except that all of the Lenders may
waive the Event of Default or, without waiving, determine, upon
terms and conditions satisfactory to all the Lenders, to reinstate
the Commitment and such other obligations and rights and make
further Advances, which determination shall apply equally to, and
shall be binding upon, all the Lenders;
(2) [Intentionally Omitted]; and
(3) the unpaid principal of all Notes, all interest
accrued and unpaid thereon and all other amounts payable under the
Loan Documents shall be forthwith due and payable, without protest,
presentment, notice of dishonor, demand or further notice of any
kind, all of which are expressly waived by Borrower.
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(c) Upon the occurrence of any Event of Default, the Lenders
and the Administrative Agent, or any of them, without notice to (except as
expressly provided for in any Loan Document) or demand upon Borrower,
which are expressly waived by Borrower (except as to notices expressly
provided for in any Loan Document), may proceed (but only with the consent
of the Requisite Lenders) to protect, exercise and enforce their rights
and remedies under the Loan Documents against Borrower and any other Party
and such other rights and remedies as are provided by Law or equity.
(d) The order and manner in which the Lenders' rights and
remedies are to be exercised shall be determined by the Requisite Lenders
in their sole discretion, and all payments received by the Administrative
Agent and the Lenders, or any of them, shall be applied first to the costs
and expenses (including reasonable attorneys' fees and disbursements and
the reasonably allocated costs of attorneys employed by the Administrative
Agent or by any Lender) of the Administrative Agent and of the Lenders,
and thereafter paid pro rata to the Lenders in the same proportions that
the aggregate Obligations owed to each Lender under the Loan Documents
bear to the aggregate Obligations owed under the Loan Documents to all the
Lenders, without priority or preference among the Lenders. Regardless of
how each Lender may treat payments for the purpose of its own accounting,
for the purpose of computing Borrower' Obligations hereunder and under the
Notes, payments shall be applied first, to the costs and expenses of the
Administrative Agent and the Lenders, as set forth above, second, to the
payment of accrued and unpaid interest due under any Loan Documents to and
including the date of such application (ratably, and without duplication,
according to the accrued and unpaid interest due under each of the Loan
Documents), and third, to the payment of all other amounts (including
principal and fees) then owing to the Administrative Agent or the Lenders
under the Loan Documents. No application of payments will cure any Event
of Default, or prevent acceleration, or continued acceleration, of amounts
payable under the Loan Documents, or prevent the exercise, or continued
exercise, of rights or remedies of the Lenders hereunder or thereunder or
at Law or in equity.
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Article 10
THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization. Subject to Section 10.8, each
Lender hereby irrevocably appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under the
Loan Documents as are delegated to the Administrative Agent by the terms thereof
or are reasonably incidental, as determined by the Administrative Agent,
thereto. This appointment and authorization is intended solely for the purpose
of facilitating the servicing of the Loans and does not constitute appointment
of the Administrative Agent as trustee for any Lender or as representative of
any Lender for any other purpose and, except as specifically set forth in the
Loan Documents to the contrary, the Administrative Agent shall take such action
and exercise such powers only in an administrative and ministerial capacity.
10.2 Administrative Agent and Affiliates. Bank of America National
Trust and Savings Association (and each successor Administrative Agent) has the
same rights and powers under the Loan Documents as any other Lender and may
exercise the same as though it were not the Administrative Agent, and the term
"Lender" or "Lenders" includes Bank of America, N.A. in its individual capacity.
Bank of America, N.A. (and each successor Administrative Agent) and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of banking, trust or other business with Borrower, any Subsidiary thereof,
or any Affiliate of Borrower or any Subsidiary thereof, as if it were not the
Administrative Agent and without any duty to account therefor to the Lenders.
Bank of America, N.A. (and each successor Administrative Agent) need not account
to any other Lender for any monies received by it for reimbursement of its costs
and expenses as Administrative Agent hereunder, or (subject to Section 11.10)
for any monies received by it in its capacity as a Lender hereunder. The
Administrative Agent shall not be deemed to hold a 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.
10.3 Proportionate Interest in any Collateral. The Administrative
Agent, on behalf of all the Lenders, shall hold in accordance with the Loan
Documents all items of any collateral or interests therein received or held by
the Administrative Agent. Subject to the Administrative Agent's and the Lenders'
rights to reimbursement for their costs and expenses hereunder (including
reasonable attorneys' fees and disbursements and other professional services and
the reasonably allocated costs of attorneys employed by the Administrative Agent
or a Lender) and subject to the application of payments in accordance with
Section 9.2(d), each Lender shall have an interest in the Lenders' interest in
such collateral or interests therein in the same proportions that the aggregate
Obligations owed such Lender under the Loan Documents bear to the aggregate
Obligations owed under the Loan Documents to all the Lenders, without priority
or preference among the Lenders.
10.4 Lenders' Credit Decisions. Each Lender agrees that it has,
independently and without reliance upon the Administrative Agent, any other
Lender or the directors, officers, agents, employees or attorneys of the
Administrative Agent or of any other Lender, and instead in reliance upon
information supplied to it by or on behalf of Borrower and upon such other
information as it has deemed appropriate, made its own independent credit
analysis and decision to enter into this Agreement. Each Lender also agrees that
it shall, independently and without reliance upon the Administrative Agent, any
other Lender or the directors, officers, agents, employees or attorneys of the
Administrative Agent or of any other Lender, continue to make its own
independent credit analyses and decisions in acting or not acting under the Loan
Documents.
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10.5 Action by Administrative Agent.
(a) Absent actual knowledge of the Administrative Agent of the
existence of a Default, the Administrative Agent may assume that no
Default has occurred and is continuing, unless the Administrative Agent
(or the Lender that is then the Administrative Agent) has received notice
from Borrower stating the nature of the Default or has received notice
from a Lender stating the nature of the Default and that such Lender
considers the Default to have occurred and to be continuing.
(b) The Administrative Agent has only those obligations under
the Loan Documents as are expressly set forth therein.
(c) Except for any obligation expressly set forth in the Loan
Documents and as long as the Administrative Agent may assume that no Event
of Default has occurred and is continuing, the Administrative Agent may,
but shall not be required to, exercise its discretion to act or not act,
except that the Administrative Agent shall be required to act or not act
upon the instructions of the Requisite Lenders (or of all the Lenders, to
the extent required by Section 11.2) and those instructions shall be
binding upon the Administrative Agent and all the Lenders, provided that
the Administrative Agent shall not be required to act or not act if to do
so would be contrary to any Loan Document or to applicable Law or would
result, in the reasonable judgment of the Administrative Agent, in
substantial risk of liability to the Administrative Agent.
(d) If the Administrative Agent has received a notice
specified in clause (a), the Administrative Agent shall immediately give
notice thereof to the Lenders and shall act or not act upon the
instructions of the Requisite Lenders (or of all the Lenders, to the
extent required by Section 11.2), provided that the Administrative Agent
shall not be required to act or not act if to do so would be contrary to
any Loan Document or to applicable Law or would result, in the reasonable
judgment of the Administrative Agent, in substantial risk of liability to
the Administrative Agent, and except that if the Requisite Lenders (or all
the Lenders, if required under Section 11.2) fail, for five (5) Banking
Days after the receipt of notice from the Administrative Agent, to
instruct the Administrative Agent, then the Administrative Agent, in its
sole discretion, may act or not act as it deems advisable for the
protection of the interests of the Lenders.
(e) The Administrative Agent shall have no liability to any
Lender for acting, or not acting, as instructed by the Requisite Lenders
(or all the Lenders, if required under Section 11.2), notwithstanding any
other provision hereof.
10.6 Liability of Administrative Agent. Neither the Administrative
Agent nor any of its directors, officers, agents, employees or attorneys shall
be liable for any action taken or not taken by them under or in connection with
the Loan Documents, except for their own gross negligence or willful misconduct.
Without limitation on the foregoing, the Administrative Agent and its directors,
officers, agents, employees and attorneys:
(a) May treat the payee of any Note as the holder thereof
until the Administrative Agent receives notice of the assignment or
transfer thereof, in form satisfactory to the Administrative Agent, signed
by the payee, and may treat each Lender as the owner of that Lender's
interest in the Obligations for all purposes of this Agreement until the
Administrative Agent receives notice of the assignment or transfer
thereof, in form satisfactory to the Administrative Agent, signed by that
Lender;
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(b) May consult with legal counsel (including in-house legal
counsel), accountants (including in-house accountants) and other
professionals or experts selected by it, or with legal counsel,
accountants or other professionals or experts for Borrower and/or their
Subsidiaries or the Lenders, and shall not be liable for any action taken
or not taken by it in good faith in accordance with any advice of such
legal counsel, accountants or other professionals or experts;
(c) Shall not be responsible to any Lender for any statement,
warranty or representation made in any of the Loan Documents or in any
notice, certificate, report, request or other statement (written or oral)
given or made in connection with any of the Loan Documents;
(d) Except to the extent expressly set forth in the Loan
Documents, shall have no duty to ask or inquire as to the performance or
observance by Borrower or its Subsidiaries of any of the terms, conditions
or covenants of any of the Loan Documents or to inspect any collateral or
any Property, books or records of Borrower or their Subsidiaries;
(e) Will not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, effectiveness,
sufficiency or value of any Loan Document, any other instrument or writing
furnished pursuant thereto or in connection therewith, or any collateral;
(f) Will not incur any liability by acting or not acting in
reliance upon any Loan Document, notice, consent, certificate, statement,
request or other instrument or writing believed in good faith by it to be
genuine and signed or sent by the proper party or parties; and
(g) Will not incur any liability for any arithmetical error in
computing any amount paid or payable by Borrower or any Subsidiary or
Affiliate thereof or paid or payable to or received or receivable from any
Lender under any Loan Document, including, without limitation, principal,
interest, commitment fees, Advances and other amounts; provided that,
promptly upon discovery of such an error in computation, the
Administrative Agent, the Lenders and (to the extent applicable) Borrower
and/or its Subsidiaries or Affiliates shall make such adjustments as are
necessary to correct such error and to restore the parties to the position
that they would have occupied had the error not occurred.
10.7 Indemnification. Each Lender shall, ratably in accordance with
its Pro Rata Share of the Commitment (if the Commitment is then in effect) or in
accordance with its proportion of the aggregate Indebtedness then evidenced by
the Notes (if the Commitment has then been terminated), indemnify and hold the
Administrative Agent and its directors, officers, agents, employees and
attorneys harmless against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever (including reasonable attorneys' fees and
disbursements and allocated costs of attorneys employed by the Administrative
Agent) that may be imposed on, incurred by or asserted against it or them in any
way relating to or arising out of the Loan Documents (other than losses incurred
by reason of the failure of Borrower to pay the Indebtedness represented by the
Notes) or any action taken or not taken by it as Administrative Agent
thereunder, except such as result from its own gross negligence or willful
misconduct. Without limitation on the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for that Lender's Pro Rata Share of any
out-of-pocket cost or expense incurred by the Administrative Agent in connection
with the negotiation, preparation, execution, delivery, amendment, waiver,
restructuring, reorganization (including a bankruptcy reorganization),
enforcement or attempted enforcement of the Loan Documents, to the extent that
Borrower or any other Party is required by Section 11.3 to pay that cost or
expense
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but fails to do so upon demand. Nothing in this Section 10.7 shall entitle the
Administrative Agent or any indemnitee referred to above to recover any amount
from the Lenders if and to the extent that such amount has theretofore been
recovered from Borrower or any of its Subsidiaries. To the extent that the
Administrative Agent or any indemnitee referred to above is later reimbursed
such amount by Borrower or any of its Subsidiaries, it shall return the amounts
paid to it by the Lenders in respect of such amount.
10.8 Successor Administrative Agent. The Administrative Agent may,
and at the request of the Requisite Lenders shall, resign as Administrative
Agent upon reasonable notice to the Lenders and Borrower effective upon
acceptance of appointment by a successor Administrative Agent. If the
Administrative Agent shall resign as Administrative Agent under this Agreement,
the Requisite Lenders shall appoint from among the Lenders a successor
Administrative Agent for the Lenders, which successor Administrative Agent shall
be approved by Borrower (and such approval shall not be unreasonably withheld or
delayed). If no successor Administrative Agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and
Borrower, a successor Administrative Agent from among the Lenders. Upon the
acceptance of its appointment as successor Administrative Agent hereunder, such
successor Administrative Agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor Administrative Agent and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article 10, and Sections 11.3,
11.11 and 11.22, shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Administrative Agent under this Agreement.
Notwithstanding the foregoing, if (a) the Administrative Agent has not been paid
its agency fees under Section 3.2 or has not been reimbursed for any expense
reimbursable to it under Section 11.3, in either case for a period of at least
one (1) year and (b) no successor Administrative Agent has accepted appointment
as Administrative Agent by the date which is thirty (30) days following a
retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Requisite Lenders appoint a successor
Administrative Agent as provided for above.
10.9 No Obligations of Borrower. Nothing contained in this Article
10 shall be deemed to impose upon Borrower any obligation in respect of the due
and punctual performance by the Administrative Agent of its obligations to the
Lenders under any provision of this Agreement, and Borrower shall have no
liability to the Administrative Agent or any of the Lenders in respect of any
failure by the Administrative Agent or any Lender to perform any of its
obligations to the Administrative Agent or the Lenders under this Agreement.
Without limiting the generality of the foregoing, where any provision of this
Agreement relating to the payment of any amounts due and owing under the Loan
Documents provides that such payments shall be made by Borrower to the
Administrative Agent for the account of the Lenders, Borrower's obligations to
the Lenders in respect of such payments shall be deemed to be satisfied upon the
making of such payments to the Administrative Agent in the manner provided by
this Agreement. In addition, Borrower may rely on a written statement by the
Administrative Agent to the effect that it has obtained the written consent of
the Requisite Lenders or all of the Lenders, as applicable under Section 11.2,
in connection with a waiver, amendment, consent, approval or other action by the
Lenders hereunder, and shall have no obligation to verify or confirm the same.
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Article 11
MISCELLANEOUS
11.1 Cumulative Remedies; No Waiver. The rights, powers, privileges
and remedies of the Administrative Agent and the Lenders provided herein or in
any Note or other Loan Document are cumulative and not exclusive of any right,
power, privilege or remedy provided by Law or equity. No failure or delay on the
part of the Administrative Agent or any Lender in exercising any right, power,
privilege or remedy may be, or may be deemed to be, a waiver thereof; nor may
any single or partial exercise of any right, power, privilege or remedy preclude
any other or further exercise of the same or any other right, power, privilege
or remedy. The terms and conditions of Article 8 hereof are inserted for the
sole benefit of the Administrative Agent and the Lenders; the same may be waived
in whole or in part, with or without terms or conditions, in respect of any Loan
without prejudicing the Administrative Agent's or the Lenders' rights to assert
them in whole or in part in respect of any other Loan.
11.2 Amendments; Consents. No amendment, modification, supplement,
extension, termination or waiver of any provision of this Agreement or any other
Loan Document, no approval or consent thereunder, and no consent to any
departure by Borrower or any other Party therefrom, may in any event be
effective unless in writing signed by the Administrative Agent with the written
approval of the Requisite Lenders (and, in the case of any amendment,
modification or supplement of or to any Loan Document to which Borrower is a
Party, signed by Borrower, and, in the case of any amendment, modification or
supplement to Article 10, signed by the Administrative Agent), and then only in
the specific instance and for the specific purpose given; and, without the
approval in writing of all the Lenders, no amendment, modification, supplement,
termination, waiver or consent may be effective:
(a) To amend or modify the principal of, or the amount of
principal or principal prepayments on, any Note, to reduce the rate of
interest payable on any Note, or the amount of the Commitment or the Pro
Rata Share of any Lender or the amount of any commitment fee payable to
any Lender, or any other fee or amount payable to any Lender under the
Loan Documents or to waive an Event of Default consisting of the failure
of Borrower to pay when due principal, interest or any fee;
(b) To postpone any date fixed for any payment of principal
of, prepayment of principal of or any installment of interest on, any Note
or any installment of any fee, or to extend the term of the Commitment;
(c) To amend the provisions of the definition of
"Requisite Lenders" or "Maturity Date"; or
(d) To release any material Subsidiary Guarantor from the
Subsidiary Guaranty; or
(e) To amend or waive Article 8 or this Section 11.2; or
(f) To amend any provision of this Agreement that expressly
requires the consent or approval of all the Lenders.
Any amendment, modification, supplement, termination, waiver or consent pursuant
to this Section 11.2 shall apply equally to, and shall be binding upon, all the
Lenders and the Administrative Agent.
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11.3 Costs, Expenses and Taxes. Borrower shall pay within twenty
(20) Banking Days after demand, accompanied by an invoice therefor, the
reasonable costs and expenses of the Administrative Agent in connection with the
negotiation, preparation, syndication, execution and delivery of the Loan
Documents and any amendment thereto or waiver thereof. Borrower shall also pay
on demand, accompanied by an invoice therefor, the reasonable costs and expenses
of the Administrative Agent and the Lenders in connection with the refinancing,
restructuring, reorganization (including a bankruptcy reorganization) and
enforcement or attempted enforcement of the Loan Documents, and any matter
related thereto. The foregoing costs and expenses shall include filing fees,
recording fees, title insurance fees, appraisal fees, search fees, and other
out-of-pocket expenses and the reasonable fees and out-of-pocket expenses of any
legal counsel (including reasonably allocated costs of legal counsel employed by
the Administrative Agent or any Lender), independent public accountants and
other outside experts retained by the Administrative Agent or any Lender,
whether or not such costs and expenses are incurred or suffered by the
Administrative Agent or any Lender in connection with or during the course of
any bankruptcy or insolvency proceedings of any of Borrower or any Subsidiary
thereof. Borrower shall pay any and all documentary and other taxes that may be
payable in connection with the execution and delivery of the Loan Documents and
agrees to hold harmless and indemnify on the terms set forth in 11.11 the
Administrative Agent and the Lenders from and against any and all loss,
liability or legal or other expense with respect to or resulting from any delay
in paying or failure to pay any such tax, cost, expense, fee or charge or that
any of them may suffer or incur by reason of the failure of any Party to perform
any of its Obligations.
11.4 Nature of Lenders' Obligations. The obligations of the Lenders
hereunder are several and not joint or joint and several. Nothing contained in
this Agreement or any other Loan Document and no action taken by the
Administrative Agent or the Lenders or any of them pursuant hereto or thereto
may, or may be deemed to, make the Lenders a partnership, an association, a
joint venture or other entity, either among themselves or with the Borrower or
any Affiliate of any of Borrower. A default by any Lender will not increase the
Pro Rata Share of the Commitments attributable to any other Lender. Any Lender
not in default may, if it desires, assume in such proportion as the
nondefaulting Lenders agree the obligations of any Lender in default, but is not
obligated to do so. The Administrative Agent agrees that it will use its best
efforts either to induce promptly the other Lenders to assume the obligations of
a Lender in default or to obtain promptly another Lender, reasonably
satisfactory to Borrower, to replace such a Lender in default.
11.5 Survival of Representations and Warranties. All representations
and warranties contained herein or in any other Loan Document, or in any
certificate or other writing delivered by or on behalf of any one or more of the
Parties to any Loan Document, will survive the making of the Loans hereunder and
the execution and delivery of the Notes, and have been or will be relied upon by
the Administrative Agent and each Lender, notwithstanding any investigation made
by the Administrative Agent or any Lender or on their behalf.
11.6 Notices. Except as otherwise expressly provided in the Loan
Documents, all notices, requests, demands, directions and other communications
provided for hereunder or under any other Loan Document must be in writing and
must be mailed, telegraphed, telecopied, dispatched by commercial courier or
delivered to the appropriate party at the address set forth on the signature
pages of this Agreement or other applicable Loan Document or, as to any party to
any Loan Document, at any other address as may be designated by it in a written
notice sent to all other parties to such Loan Document in accordance with this
Section. Except as otherwise expressly provided in any Loan Document, if any
notice, request, demand, direction or other communication required or permitted
by any Loan Document is given by mail it will be effective on the earlier of
receipt or the fourth Banking Day after deposit in the United States mail with
first class or airmail postage prepaid; if given by telegraph or cable, when
delivered to the telegraph company with charges prepaid; if given
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by telecopier, when sent; if dispatched by commercial courier, on the scheduled
delivery date; or if given by personal delivery, when delivered.
11.7 Execution of Loan Documents. Unless the Administrative Agent
otherwise specifies with respect to any Loan Document, (a) this Agreement and
any other Loan Document may be executed in any number of counterparts and any
party hereto or thereto may execute any counterpart, each of which when executed
and delivered will be deemed to be an original and all of which counterparts of
this Agreement or any other Loan Document, as the case may be, when taken
together will be deemed to be but one and the same instrument and (b) execution
of any such counterpart may be evidenced by a telecopier transmission of the
signature of such party. The execution of this Agreement or any other Loan
Document by any party hereto or thereto will not become effective until
counterparts hereof or thereof, as the case may be, have been executed by all
the parties hereto or thereto.
11.8 Binding Effect; Assignment.
(a) This Agreement and the other Loan Documents to which
Borrower is a Party will be binding upon and inure to the benefit of
Borrower, the Administrative Agent, each of the Lenders, and their
respective successors and assigns, except that Borrower may not assign its
rights hereunder or thereunder or any interest herein or therein without
the prior written consent of all the Lenders. Each Lender represents that
it is not acquiring its Note with a view to the distribution thereof
within the meaning of the Securities Act of 1933, as amended (subject to
any requirement that disposition of such Note must be within the control
of such Lender). Any Lender may at any time pledge its Note or any other
instrument evidencing its rights as a Lender under this Agreement to a
Federal Reserve Bank, but no such pledge shall release that Lender from
its obligations hereunder or grant to such Federal Reserve Bank the rights
of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender
may assign to one or more Eligible Assignees all or any portion of its Pro
Rata Share of the Commitment; provided that (i) such Eligible Assignee, if
not then a Lender or an Affiliate of the assigning Lender, shall be
approved by the Administrative Agent and (if no Event of Default then
exists) Borrower (neither of which approvals shall be unreasonably
withheld or delayed), (ii) such assignment shall be evidenced by a
Commitment Assignment and Acceptance, a copy of which shall be furnished
to the Administrative Agent as hereinbelow provided, (iii) except in the
case of an assignment to an Affiliate of the assigning Lender, to another
Lender or of the entire remaining Commitment of the assigning Lender, the
assignment shall not assign a Pro Rata Share of the Commitment that is
equivalent to less than $5,000,000, (iv) [Intentionally Omitted]; (v)
[Intentionally Omitted], and (vi) the effective date of any such
assignment shall be as specified in the Commitment Assignment and
Acceptance, but not earlier than the date which is five (5) Banking Days
after the date the Administrative Agent has received the Commitment
Assignment and Acceptance, unless otherwise consented to by the
Administrative Agent. Upon the effective date of such Commitment
Assignment and Acceptance, the Eligible Assignee named therein shall be a
Lender for all purposes of this Agreement, with the Pro Rata Share of the
Commitment therein set forth and, to the extent of such Pro Rata Share,
the assigning Lender shall be released from its further obligations under
this Agreement. Borrower agrees that it shall execute and deliver (against
delivery by the assigning Lender to Borrower of its Note) to such assignee
Lender, a Note evidencing that assignee Lender's Pro Rata Share of the
Commitment, and to the assigning Lender, a Note evidencing the remaining
balance Pro Rata Share retained by the assigning Lender.
(c) By executing and delivering a Commitment Assignment and
Acceptance, the Eligible Assignee thereunder acknowledges and agrees that:
(i) other than the representation and
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warranty that it is the legal and beneficial owner of the Pro Rata Share
of the Commitment being assigned thereby free and clear of any adverse
claim, the assigning Lender has made no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness or
sufficiency of this Agreement or any other Loan Document; (ii) the
assigning Lender has made no representation or warranty and assumes no
responsibility with respect to the financial condition of Borrower or
the performance by Borrower of the Obligations; (iii) it has received a
copy of this Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 7.1 and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Commitment Assignment
and Acceptance; (iv) it will, independently and without reliance upon
the Administrative Agent or any Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under this
Agreement; (v) it appoints and authorizes the Administrative Agent to
take such action and to exercise such powers under this Agreement as are
delegated to the Administrative Agent by this Agreement; and (vi) it
will perform in accordance with their terms all of the obligations which
by the terms of this Agreement are required to be performed by it as a
Lender.
(d) The Administrative Agent shall maintain at the
Administrative Agent's Office a copy of each Commitment Assignment and
Acceptance delivered to it and a register (the "Register") of the names
and address of each of the Lenders and the Pro Rata Share of the
Commitment held by each Lender, giving effect to each Commitment
Assignment and Acceptance. The Register shall be available during normal
business hours for inspection by Borrower or any Lender upon reasonable
prior notice to the Administrative Agent. After receipt of a completed
Commitment Assignment and Acceptance executed by any Lender and an
Eligible Assignee, and receipt of an assignment fee of $3,000 from such
Lender or Eligible Assignee, the Administrative Agent shall, promptly
following the effective date thereof, provide to Borrower and the Lenders
a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative
Agent and the Lenders shall deem and treat the Persons listed as Lenders
in the Register as the holders and owners of the Pro Rata Share of the
Commitment listed therein for all purposes hereof, and no assignment or
transfer of any such Pro Rata Share of the Commitment shall be effective,
in each case unless and until a Commitment Assignment and Acceptance
effecting the assignment or transfer thereof shall have been accepted by
the Administrative Agent and recorded in the Register as provided above.
Prior to such recordation, all amounts owed with respect to the applicable
Pro Rata Share of the Commitment shall be owed to the Lender listed in the
Register as the owner thereof, and any request, authority or consent of
any Person who, at the time of making such request or giving such
authority or consent, is listed in the Register as a Lender shall be
conclusive and binding on any subsequent holder, assignee or transferee of
the corresponding Pro Rata Share of the Commitment.
(e) Each Lender may from time to time grant participations to
one or more banks or other financial institutions in a portion of its Pro
Rata Share of the Commitment; provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or other
financial institutions shall not be a Lender hereunder for any purpose
except, if the participation agreement so provides, for the purposes of
Sections 3.7, 3.8, 11.11 and 11.22 but only to the extent that the cost of
such benefits to Borrower does not exceed the cost which Borrower would
have incurred in respect of such Lender absent the participation, (iv)
Borrower, the Administrative Agent and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement, (v) the
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participation interest shall be expressed as a percentage of the
granting Lender's Pro Rata Share of the Commitment as it then exists and
shall not restrict an increase in the Commitment, or in the granting
Lender's Pro Rata Share of the Commitment, so long as the amount of the
participation interest is not affected thereby and (vi) the consent of
the holder of such participation interest shall not be required for
amendments or waivers of provisions of the Loan Documents other than
those which (A) extend the Maturity Date or any other date upon which
any payment of money is due to the Lenders, (B) reduce the rate of
interest on the Notes, any fee or any other monetary amount payable to
the Lenders, (C) reduce the amount of any installment of principal due
under the Notes or (D) release any material Subsidiary Guarantor from
the Subsidiary Guaranty.
(f) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender") may grant to a special purpose conduit
funding vehicle (an "SPC") identified as such in a writing delivered from
time to time by the Granting Lender to the Administrative Agent and
Borrower, the option to fund all or any part of any Loan that such
Granting Lender would otherwise be obligated to fund pursuant to this
Agreement; provided that (i) nothing herein shall constitute a commitment
by an SPC to fund any Loan, (ii) the Granting Lender shall remain
obligated to fund such Loan pursuant to the terms hereof unless and until
the SPC actually funds such Loan in full, (iii) the SPC shall be subject
to all of the restrictions hereunder applicable to its Granting Lender and
shall have no rights hereunder beyond any derived from its Granting
Lender, (iv) the Administrative Agent, Borrower and the other Lenders
shall continue to deal only with the Granting Lender respecting this
Agreement and no such option shall, and no such funding shall (except as
to the funding of that Loan), release the Granting Lender of any
obligation hereunder, and (v) such SPC must be a party to an agreement
with the Granting Lender containing provisions substantially similar to
Section 11.14 (provided, however, that such agreement may permit such SPC
to disclose on a confidential basis on terms substantially similar to
Section 11.14 any non-public information relating to its funding of Loans
to any rating agency, commercial paper dealer or provider of any surety or
guarantee to such SPC) and provide a copy thereof to the Administrative
Agent and Borrower. The Loans made by an SPC shall be evidenced by the
Note of its Granting Lender. Payments made by Borrower to a Granting
Lender in respect of a Loan made by its SPC shall be deemed payments made
to such SPC and neither the Administrative Agent nor Borrower shall have
any responsibility to an SPC as to any payments made to its Granting
Lender. Any consent or approval given by a Granting Lender pursuant to
Section 11.2 shall be conclusive as against any SPC of that Granting
Lender, notwithstanding the failure of the SPC to approve such consent or
approval. The funding of a Loan by an SPC hereunder shall utilize the Pro
Rata Share of the Commitment of the Granting Lender to the same extent as
if such Loan were funded by such Granting Lender. No SPC shall be liable
for any indemnity or payment under this Agreement (all liability for which
shall remain with the Granting Lender). This Section 11.8(f) may not be
amended without the written consent of each Granting Lender, all or any
part of whose Loan is being funded by an SPC designated to the
Administrative Agent and Borrower as provided above as of the time of such
amendment.
11.9 Right of Setoff. If an Event of Default has occurred and is
continuing, the Administrative Agent or any Lender may exercise its rights under
applicable Laws and, to the extent permitted by applicable Laws, apply any funds
in any deposit account maintained with it by Borrower and/or any Property of
Borrower in its possession against the Obligations.
11.10 Sharing of Setoffs. Each Lender severally agrees that if it,
through the exercise of any right of setoff, banker's lien or counterclaim
against Borrower, or otherwise, receives payment of the Obligations held by it
that is ratably more than any other Lender, through any means, receives in
payment of the Obligations held by that Lender, then, subject to applicable
Laws: (a) the Lender exercising the right of setoff,
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banker's lien or counterclaim or otherwise receiving such payment shall
purchase, and shall be deemed to have simultaneously purchased, from each of the
other Lenders a participation in the Obligations held by the other Lenders and
shall pay to the other Lenders a purchase price in an amount so that the share
of the Obligations held by each Lender after the exercise of the right of
setoff, banker's lien or counterclaim or receipt of payment shall be in the same
proportion that existed prior to the exercise of the right of setoff, banker's
lien or counterclaim or receipt of payment; and (b) such other adjustments and
purchases of participations shall be made from time to time as shall be
equitable to ensure that all of the Lenders share any payment obtained in
respect of the Obligations ratably in accordance with each Lender's share of the
Obligations immediately prior to, and without taking into account, the payment;
provided that, if all or any portion of a disproportionate payment obtained as a
result of the exercise of the right of setoff, banker's lien, counterclaim or
otherwise is thereafter recovered from the purchasing Lender by Borrower or any
Person claiming through or succeeding to the rights of Borrower, the purchase of
a participation shall be rescinded and the purchase price thereof shall be
restored to the extent of the recovery, but without interest. Each Lender that
purchases a participation in the Obligations pursuant to this Section 11.10
shall from and after the purchase have the right to give all notices, requests,
demands, directions and other communications under this Agreement with respect
to the portion of the Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligations purchased. Borrower
expressly consents to the foregoing arrangements and agrees that any Lender
holding a participation in an Obligation so purchased pursuant to this Section
11.10 may exercise any and all rights of setoff, banker's lien or counterclaim
with respect to the participation as fully as if the Lender were the original
owner of the Obligation purchased.
11.11 Indemnity by Borrower. Borrower agrees to indemnify, save and
hold harmless the Administrative Agent and each Lender and their respective
Affiliates, directors, officers, agents, attorneys and employees (collectively
the "Indemnitees") from and against: (a) any and all claims, demands, actions or
causes of action (except a claim, demand, action, or cause of action for any
amount excluded from the definition of "Taxes" in Section 3.12(d)) if the claim,
demand, action or cause of action arises out of or relates to any act or
omission (or alleged act or omission) of Borrower, its Affiliates or any of its
officers, directors or stockholders relating to the Commitment, the use or
contemplated use of proceeds of any Loan, or the relationship of Borrower and
the Lenders under this Agreement; (b) any administrative or investigative
proceeding by any Governmental Agency arising out of or related to a claim,
demand, action or cause of action described in clause (a) above; and (c) any and
all liabilities, losses, costs or expenses (including reasonable attorneys' fees
and the reasonably allocated costs of attorneys employed by any Indemnitee and
disbursements of such attorneys and other professional services) that any
Indemnitee suffers or incurs as a result of the assertion of any foregoing
claim, demand, action or cause of action; provided that no Indemnitee shall be
entitled to indemnification for any loss caused by its own gross negligence or
willful misconduct or for any loss asserted against it by another Indemnitee. If
any claim, demand, action or cause of action is asserted against any Indemnitee,
such Indemnitee shall promptly notify Borrower, but the failure to so promptly
notify Borrower shall not affect Borrower's obligations under this Section
unless such failure materially prejudices Borrower's right to participate in the
contest of such claim, demand, action or cause of action, as hereinafter
provided. Such Indemnitee may (and shall, if requested by Borrower in writing)
contest the validity, applicability and amount of such claim, demand, action or
cause of action and shall permit Borrower to participate in such contest. Any
Indemnitee that proposes to settle or compromise any claim or proceeding for
which Borrower may be liable for payment of indemnity hereunder shall give
Borrower written notice of the terms of such proposed settlement or compromise
reasonably in advance of settling or compromising such claim or proceeding and
shall obtain Borrower's prior consent (which shall not be unreasonably withheld
or delayed). In connection with any claim, demand, action or cause of action
covered by this Section 11.11 against more than one Indemnitee, all such
Indemnitees shall be represented by the same legal counsel (which may be a law
firm engaged by the Indemnitees or attorneys employed by an Indemnitee or a
combination of the foregoing) selected by the Indemnitees and reasonably
acceptable to Borrower; provided, that if such legal counsel determines in good
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faith that representing all such Indemnitees would or could result in a conflict
of interest under Laws or ethical principles applicable to such legal counsel or
that a defense or counterclaim is available to an Indemnitee that is not
available to all such Indemnitees, then to the extent reasonably necessary to
avoid such a conflict of interest or to permit unqualified assertion of such a
defense or counterclaim, each affected Indemnitee shall be entitled to separate
representation by legal counsel selected by that Indemnitee and reasonably
acceptable to Borrower, with all such legal counsel using reasonable efforts to
avoid unnecessary duplication of effort by counsel for all Indemnitees; and
further provided that the Administrative Agent (as an Indemnitee) shall at all
times be entitled to representation by separate legal counsel (which may be a
law firm or attorneys employed by the Administrative Agent or a combination of
the foregoing). Any obligation or liability of Borrower to any Indemnitee under
this Section 11.11 shall survive the expiration or termination of this Agreement
and the repayment of all Loans and the payment and performance of all other
Obligations owed to the Lenders.
11.12 Nonliability of the Lenders. Borrower acknowledges and
agrees that:
(a) Any inspections of any Property of Borrower made by or
through the Administrative Agent or the Lenders are for purposes of
administration of the Loan only and Borrower is not entitled to rely upon
the same (whether or not such inspections are at the expense of Borrower);
(b) By accepting or approving anything required to be
observed, performed, fulfilled or given to the Administrative Agent or the
Lenders pursuant to the Loan Documents, neither the Administrative Agent
nor the Lenders shall be deemed to have warranted or represented the
sufficiency, legality, effectiveness or legal effect of the same, or of
any term, provision or condition thereof, and such acceptance or approval
thereof shall not constitute a warranty or representation to anyone with
respect thereto by the Administrative Agent or the Lenders;
(c) The relationship between Borrower and the Administrative
Agent and the Lenders is, and shall at all times remain, solely that of
borrowers and lenders; neither the Administrative Agent nor the Lenders
shall under any circumstance be construed to be partners or joint
venturers of Borrower or its Affiliates; neither the Administrative Agent
nor the Lenders shall under any circumstance be deemed to be in a
relationship of confidence or trust or a fiduciary relationship with
Borrower or its Affiliates, or to owe any fiduciary duty to Borrower or
its Affiliates; neither the Administrative Agent nor the Lenders undertake
or assume any responsibility or duty to Borrower or its Affiliates to
select, review, inspect, supervise, pass judgment upon or inform Borrower
or its Affiliates of any matter in connection with their Property or the
operations of Borrower or its Affiliates; Borrower and its Affiliates
shall rely entirely upon their own judgment with respect to such matters;
and any review, inspection, supervision, exercise of judgment or supply of
information undertaken or assumed by the Administrative Agent or the
Lenders in connection with such matters is solely for the protection of
the Administrative Agent and the Lenders and neither Borrower nor any
other Person is entitled to rely thereon; and
(d) The Administrative Agent and the Lenders shall not be
responsible or liable to any Person for any loss, damage, liability or
claim of any kind relating to injury or death to Persons or damage to
Property caused by the actions, inaction or negligence of Borrower and/or
its Affiliates and Borrower hereby indemnify and hold the Administrative
Agent and the Lenders harmless on the terms set forth in Section 11.11
from any such loss, damage, liability or claim.
11.13 No Third Parties Benefited. This Agreement is made for the
purpose of defining and setting forth certain obligations, rights and duties of
Borrower, the Administrative Agent and the Lenders in
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connection with the Loans, and is made for the sole benefit of Borrower and its
Subsidiaries, the Administrative Agent and the Lenders, and the Administrative
Agent's and the Lenders' successors and assigns. Except as provided in Sections
11.8 and 11.11, no other Person shall have any rights of any nature hereunder or
by reason hereof.
11.14 Confidentiality. Each Lender agrees to hold any confidential
information that it may receive from Borrower pursuant to this Agreement in
confidence, except for disclosure: (a) to other Lenders or Affiliates of a
Lender; (b) to legal counsel and accountants for Borrower or any Lender; (c) to
other professional advisors to Borrower or any Lender, provided that the
recipient has accepted such information subject to a confidentiality agreement
substantially similar to this Section 11.14; (d) to regulatory officials having
jurisdiction over that Lender; (e) as required by Law or legal process, provided
that each Lender agrees to notify Borrower of any such disclosures unless
prohibited by applicable Laws, or in connection with any legal proceeding to
which that Lender and Borrower are adverse parties; and (f) to another financial
institution in connection with a disposition or proposed disposition to that
financial institution of all or part of that Lender's interests hereunder or a
participation interest in its Notes, provided that the recipient has accepted
such information subject to a confidentiality agreement substantially similar to
this Section 11.14. For purposes of the foregoing, "confidential information"
shall mean any information respecting Borrower or its Subsidiaries reasonably
considered by Borrower to be confidential, other than (i) information previously
filed with any Governmental Agency and available to the public, (ii) information
previously published in any public medium from a source other than, directly or
indirectly, that Lender, and (iii) information previously disclosed by Borrower
to any Person not associated with Borrower which does not owe a professional
duty of confidentiality to Borrower or which has not executed an appropriate
confidentiality agreement with Borrower. Nothing in this Section shall be
construed to create or give rise to any fiduciary duty on the part of the
Administrative Agent or the Lenders to Borrower.
11.15 Further Assurances. Borrower shall, at its expense and without
expense to the Lenders or the Administrative Agent, do, execute and deliver such
further acts and documents as the Requisite Lenders or the Administrative Agent
from time to time reasonably require for the assuring and confirming unto the
Lenders or the Administrative Agent of the rights hereby created or intended now
or hereafter so to be, or for carrying out the intention or facilitating the
performance of the terms of any Loan Document.
11.16 Integration. This Agreement, together with the other Loan
Documents and the letter agreement referred to in Section 3.2, comprises the
complete and integrated agreement of the parties on the subject matter hereof
and supersedes all prior agreements, written or oral, on the subject matter
hereof. In the event of any conflict between the provisions of this Agreement
and those of any other Loan Document, the provisions of this Agreement shall
control and govern; provided that the inclusion of supplemental rights or
remedies in favor of the Administrative Agent or the Lenders in any other Loan
Document shall not be deemed a conflict with this Agreement. Each Loan Document
was drafted with the joint participation of the respective parties thereto and
shall be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof.
11.17 Governing Law. Except to the extent otherwise provided
therein, each Loan Document shall be governed by, and construed and enforced in
accordance with, the Laws of New York applicable to contracts made and performed
in New York.
11.18 Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable or invalid as to any party or in
any jurisdiction shall, as to that party or jurisdiction, be inoperative,
unenforceable or invalid without affecting the remaining provisions or the
operation, enforceability or validity of that provision as to any other party or
in any other jurisdiction, and to this end the
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provisions of all Loan Documents are declared to be severable.
11.19 Headings. Article and Section headings in this Agreement and
the other Loan Documents are included for convenience of reference only and are
not part of this Agreement or the other Loan Documents for any other purpose.
11.20 Time of the Essence. Time is of the essence of the Loan
Documents.
11.21 Foreign Lenders and Participants. Each Lender organized under
the Laws of a jurisdiction outside the United States of America or a State
thereof or the District of Columbia on or prior to the date of execution and
delivery of this Agreement (a) shall provide each of the Administrative Agent
and Borrower with two original and duly completed United States Internal Revenue
Forms 1001 or 4224, or successor applicable form, as appropriate, and any other
forms or certifications prescribed by the Internal Revenue Service (including a
Form W-8 or Form W-9, as appropriate) certifying that such Lender (i) is exempt
from or entitled to a reduced rate of withholding with respect to United States
federal income tax imposed on any payments under this Agreement or the Notes and
(ii) is exempt from United States backup withholding tax, (b) shall provide to
the Administrative Agent and Borrower two further copies of any such form or
certification from time to time thereafter as requested in writing by Borrower
and (c) shall obtain such extensions and renewals thereof as may reasonably be
requested in writing by Borrower or the Administrative Agent. If the form
provided by a Lender at the time such Lender first becomes a party to this
Agreement indicates a withholding rate in excess of zero, withholding taxes at
such rate shall be considered excluded from Non-Excluded Taxes, and such Lender
shall not be entitled to receive any payment under this Section 11.21 with
respect thereto, unless and until such Lender provides any additional forms or
certifications certifying that a lesser rate of withholding applied with respect
to such Lender under existing Law at the time such Lender first became a party
to this Agreement, whereupon withholding tax at such lesser rate only shall be
considered excluded from Non-Excluded Taxes for all subsequent periods. Each
Person that becomes a participant pursuant to Section 11.8 shall, upon the
effectiveness of the related transfer, be required to provide all of the forms
and certifications required pursuant to this Section 11.21, as appropriate, as
if such participant were a Lender; provided that such participant shall furnish
all such required forms and certifications to the Lender from which the related
participation was purchased.
11.22 Hazardous Material Indemnity. Borrower hereby agrees to
indemnify, hold harmless and defend (by counsel reasonably satisfactory to the
Administrative Agent) the Administrative Agent and each of the Lenders and their
respective directors, officers, employees, agents, successors and assigns from
and against any and all claims, losses, damages, liabilities, fines, penalties,
charges, administrative and judicial proceedings and orders, judgments, remedial
action requirements, enforcement actions of any kind, and all costs and expenses
incurred in connection therewith (including but not limited to reasonable
attorneys' fees and the reasonably allocated costs of attorneys employed by the
Administrative Agent or any Lender, and expenses to the extent that the defense
of any such action has not been assumed by Borrower), arising directly or
indirectly out of (i) the presence on, in, under or about any Real Property of
any Hazardous Materials, or any releases or discharges of any Hazardous
Materials on, under or from any Real Property and (ii) any activity carried on
or undertaken on or off any Real Property by Borrower or any of its predecessors
in title, whether prior to or during the term of this Agreement, and whether by
Borrower or any predecessor in title or any employees, agents, contractors or
subcontractors of Borrower or any predecessor in title, in connection with the
handling, treatment, removal, storage, decontamination, clean-up, transport or
disposal of any Hazardous Materials at any time located or present on, in, under
or about any Real Property. The foregoing indemnity shall further apply to any
residual contamination on, in, under or about any Real Property, or affecting
any natural resources, and to any contamination of any Property or natural
resources arising in connection with the generation, use, handling, storage,
transport or disposal of any such Hazardous Materials, and irrespective of
whether any of such activities
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were or will be undertaken in accordance with applicable Laws, but the foregoing
indemnity shall not apply to Hazardous Materials on any Real Property, the
presence of which is caused by the Administrative Agent or the Lenders. Borrower
hereby acknowledges and agrees that, notwithstanding any other provision of this
Agreement or any of the other Loan Documents to the contrary, the obligations of
Borrower under this Section shall be unlimited corporate obligations of Borrower
and shall not be secured by any Lien on any Real Property. Any obligation or
liability of Borrower to any Indemnitee under this Section 11.22 shall survive
the expiration or termination of this Agreement and the repayment of all Loans
and the payment and performance of all other Obligations owed to the Lenders.
11.23 Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTY HERETO OR ANY OF THEM WITH
RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR
TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
11.24 Purported Oral Amendments. BORROWER EXPRESSLY ACKNOWLEDGES
THAT THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY ONLY BE AMENDED OR
MODIFIED, OR THE PROVISIONS HEREOF OR THEREOF WAIVED OR SUPPLEMENTED, BY AN
INSTRUMENT IN WRITING THAT COMPLIES WITH SECTION 11.2. BORROWER AGREES THAT IT
WILL NOT RELY ON ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR ORAL OR
WRITTEN STATEMENTS BY ANY REPRESENTATIVE OF THE MANAGING AGENT OR ANY BANK THAT
DOES NOT COMPLY WITH SECTION 11.2 TO EFFECT AN AMENDMENT, MODIFICATION, WAIVER
OR SUPPLEMENT TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.
[Remainder of Page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
USEC INC.
By:
------------------------------
----------------------------
[Printed Name and Title]
Address for notices:
USEC Inc.
6903 Rockledge Drive
Bethesda, Maryland 20817
Attn: Chief Financial Officer
Telecopier: (301) 564-3211
Telephone: (301) 564-3344
<PAGE> 70
BANK OF AMERICA, N.A., as Administrative Agent
By: /s/Gina Meador
-------------------
Gina Meador
Vice President
Address for notices (other than Requests for Loan)
Bank of America, N.A.
Agency Management - Los Angeles
Mail Code CA9-706-11-03
555 South Flower Street, 11th Floor
Los Angeles, California 90071
Attn: Gina Meador
Telecopier: (213) 228-2299
Telephone: (213) 228-5245
Address for notices (Requests for Loans and
Domestic and Offshore Lending Office):
Bank of America, N.A.
Agency Administrative Services
Mail Code CA4-706-05-09
1850 Gateway Boulevard, 5th Floor
Concord, California 94520
Attn: Glenis Croucher
Telecopier: (925) 969-2807
Telephone: (925) 675-8447
<PAGE> 71
BANK OF AMERICA, N.A., as a Lender
By: /s/ Dianne J. Prust
-----------------------------------------
Dianne J. Prust
Principal
Address for notices (other than Requests for Loans):
Bank of America, N.A.
Credit Products
Mail Code CA9-706-11-07
555 South Flower Street, 11th Floor
Los Angeles, California 90071
Attn: Dianne J. Prust, Principal
Telecopier: (213) 623-1959
Telephone: (213) 228-2435
<PAGE> 72
FIRST UNION NATIONAL BANK, as Syndication Agent
and as a Lender
By: /s/ Barbara Kauffmann Angel
-------------------------------------------
Barbara Kauffmann Angel
Vice President
Address for notices:
First Union National Bank
1970 Chain Bridge Road, 3rd Floor
McLean, Virginia 22102
Attn: Barbara K. Angel
Telecopier: (703) 760-5457
Telephone: (703) 760-6369
<PAGE> 73
WACHOVIA BANK, NATIONAL ASSOCIATION, as
Documentation Agent and as a Lender
By: /s/ Keith A. Sherman
-------------------------
Keith A. Sherman
Senior Vice President
Address for notices:
Wachovia Bank, National Association
227 Fayetteville Street, 8th Floor
Raleigh, North Carolina 27601
Attn: Keith A. Sherman
Telecopier: (919) 755-7879
Telephone: (919) 755-7806
<PAGE> 74
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as
a Lender
By: /s/ Robert R. Bottamedi
--------------------------
Robert R. Bottamedi
Vice President
Address for notice:
Morgan Guaranty Trust Company of New York
60 Wall Street
New York, New York 10260
Attn: Robert R. Bottamedi
Telecopier: (212) 648-5018
Telephone: (212) 648-1349
<PAGE> 75
MELLON BANK, N.A., as a Lender
By: /s/ Maria N. Sisto
-------------------
Maria N. Sisto
Assistant Vice President
Address for notices:
Mellon Bank, N.A.
Corporate Banking
Mellon Bank Center, AIM 193-0750
Philadelphia, Pennsylvania 19103
Attn: Maria N. Sisto
Telecopier: (215) 553-4899
Telephone: (215) 553-3243
<PAGE> 76
THE NORTHERN TRUST COMPANY, as a Lender
By: /s/ Eric Strickland
--------------------------
Eric Strickland
Vice President
Address for notices:
The Northern Trust Company
50 South LaSalle Street
Chicago, Illinois 60675
Attn: Eric Strickland
Telecopier: (312) 630-6062
Telephone: (312) 444-5602
<PAGE> 77
THE BANK OF NOVA SCOTIA, as a Lender
By:
------------------------------
-----------------------------
[Printed Name and Title]
Address for notices:
The Bank of Nova Scotia
1 Liberty Plaza
New York, New York 10006
Attn: Timothy P. Finneran
Telecopier: (212) 225-5090
Telephone: (212) 225-5159
<PAGE> 78
FLEET NATIONAL BANK, as a Lender
By: /s/Stephen J. Hoffman
--------------------------
Stephen J. Hoffman
Assistant Vice President
Address for notices:
Fleet National Bank
One Federal Street - MAOFD07J
Boston, Massachusetts 02110-2012
Attn: Stephen J. Hoffman
Telecopier: (617) 346-0580
Telephone: (617) 346-0571
