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THE OBLIGATIONS OF USEC INC. UNDER THIS 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.
REVOLVING LOAN AGREEMENT
Dated as of July 28, 1998
among
USEC INC.
THE LENDERS HEREIN NAMED
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
as Documentation Agent and Administrative Agent
FIRST UNION NATIONAL BANK
and
NATIONSBANK, N.A.
as Syndication Agents
and
BANCAMERICA XXXXXXXXX XXXXXXXX,
as Lead Arranger
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TABLE OF CONTENTS
Page
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Article 1 DEFINITIONS AND ACCOUNTING TERMS......................................................................1
1.1 Defined Terms....................................................................................1
1.2 Use of Defined Terms............................................................................27
1.3 Accounting Terms................................................................................27
1.4 Rounding........................................................................................28
1.5 Exhibits and Schedules..........................................................................28
1.6 References to "Borrower and its Subsidiaries"...................................................28
1.7 Miscellaneous Terms.............................................................................28
Article 2 LOANS AND LETTERS OF CREDIT..........................................................................29
2.1 Loans-General...................................................................................29
2.2 Base Rate Loans.................................................................................31
2.3 Eurodollar Rate Loans...........................................................................31
2.4 Bid Option Advances.............................................................................31
2.5 Letters of Credit...............................................................................35
2.6 Voluntary Reduction of Commitments..............................................................39
2.7 Specified Reductions of Tranche A Commitment....................................................39
2.8 Optional Termination of Commitments.............................................................39
2.9 Administrative Agent's Right to Assume Funds Available for Advances.............................39
2.10 Guaranty........................................................................................40
Article 3 PAYMENTS AND FEES....................................................................................41
3.1 Principal and Interest..........................................................................41
3.2 Arranger and Agency Fees........................................................................43
3.3 Facility Fee....................................................................................43
3.4 Utilization Fee.................................................................................43
3.5 Refinancing Fee.................................................................................44
3.6 Letter of Credit Fees...........................................................................44
3.7 Increased Commitment Costs......................................................................45
3.8 Eurodollar Costs and Related Matters............................................................45
3.9 Late Payments...................................................................................49
3.10 Computation of Interest and Fees................................................................50
3.11 Non-Banking Days................................................................................50
3.12 Manner and Treatment of Payments................................................................50
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3.13 Funding Sources.................................................................................53
3.14 Failure to Charge Not Subsequent Waiver.........................................................53
3.15 Administrative Agent's Right to Assume Payments Will be Made....................................53
3.16 Fee Determination Detail........................................................................53
3.17 Survivability...................................................................................54
3.18 Substitution of Lender..........................................................................54
Article 4 REPRESENTATIONS AND WARRANTIES.......................................................................55
4.1 Existence and Qualification; Power; Compliance With Laws........................................55
4.2 Authority; Compliance With Other Agreements and Instruments and Government Regulations..........55
4.3 No Governmental Approvals Required..............................................................56
4.4 Subsidiaries....................................................................................56
4.5 Financial Statements............................................................................57
4.6 No Other Liabilities; No Material Adverse Changes...............................................57
4.7 Title to and Location of Property...............................................................58
4.8 Intellectual Property...........................................................................58
4.9 Public Utility Holding Company Act..............................................................58
4.10 Litigation......................................................................................58
4.11 Binding Obligations.............................................................................59
4.12 No Default......................................................................................59
4.13 ERISA...........................................................................................59
4.14 Regulation U; Investment Company Act............................................................60
4.15 Disclosure......................................................................................60
4.16 Tax Liability...................................................................................60
4.17 Projections.....................................................................................60
4.18 Hazardous Materials.............................................................................60
4.19 Solvency........................................................................................61
4.20 The Privatization...............................................................................61
4.21 Registration Statement..........................................................................61
4.22 Pre- Privatization Liabilities..................................................................61
Article 5 AFFIRMATIVE COVENANTS (OTHER THAN INFORMATION AND REPORTING REQUIREMENTS)............................62
5.1 Payment of Taxes and Other Potential Liens......................................................62
5.2 Preservation of Existence.......................................................................62
5.3 Maintenance of Properties.......................................................................62
5.4 Maintenance of Insurance........................................................................62
5.5 Compliance With Laws............................................................................63
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5.6 Inspection Rights...............................................................................63
5.7 Keeping of Records and Books of Account.........................................................63
5.8 Compliance With Agreements......................................................................63
5.9 Use of Proceeds.................................................................................63
5.10 Hazardous Materials Laws........................................................................63
5.11 Future Subsidiaries.............................................................................64
5.12 Year 2000 Compliance............................................................................64
5.13 Syndication Process.............................................................................64
Article 6 NEGATIVE COVENANTS...................................................................................65
6.1 Disposition of Property.........................................................................65
6.2 Mergers.........................................................................................65
6.3 Hostile Acquisitions............................................................................65
6.4 Distributions...................................................................................65
6.5 ERISA...........................................................................................66
6.6 Change in Nature of Business....................................................................66
6.7 Liens and Negative Pledges......................................................................66
6.8 Transactions with Affiliates....................................................................67
6.9 Stockholders' Equity............................................................................67
6.10 Capitalization Ratio............................................................................67
6.11 Investments.....................................................................................67
6.12 Subsidiary Indebtedness.........................................................................68
Article 7 INFORMATION AND REPORTING REQUIREMENTS...............................................................69
7.1 Financial and Business Information..............................................................69
7.2 Compliance Certificates.........................................................................72
Article 8 CONDITIONS...........................................................................................73
8.1 Initial Advances................................................................................73
8.2 Any Advance.....................................................................................75
Article 9 EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT ................................................77
9.1 Events of Default...............................................................................77
9.2 Remedies Upon Event of Default..................................................................79
Article 10 THE ADMINISTRATIVE AGENT............................................................................83
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10.1 Appointment and Authorization...................................................................83
10.2 Administrative Agent and Affiliates.............................................................83
10.3 Proportionate Interest in any Collateral........................................................83
10.4 Lenders' Credit Decisions.......................................................................84
10.5 Action by Administrative Agent..................................................................84
10.6 Liability of Administrative Agent...............................................................85
10.7 Indemnification.................................................................................86
10.8 Successor Administrative Agent..................................................................87
10.9 No Obligations of Borrower......................................................................88
Article 11 MISCELLANEOUS.......................................................................................89
11.1 Cumulative Remedies; No Waiver..................................................................89
11.2 Amendments; Consents............................................................................89
11.3 Costs, Expenses and Taxes.......................................................................90
11.4 Nature of Lenders' Obligations..................................................................91
11.5 Survival of Representations and Warranties......................................................91
11.6 Notices.........................................................................................91
11.7 Execution of Loan Documents.....................................................................91
11.8 Binding Effect; Assignment......................................................................92
11.9 Right of Setoff.................................................................................95
11.10 Sharing of Setoffs..............................................................................95
11.11 Indemnity by Borrower...........................................................................96
11.12 Nonliability of the Lenders.....................................................................97
11.13 No Third Parties Benefited......................................................................98
11.14 Confidentiality.................................................................................98
11.15 Further Assurances..............................................................................99
11.16 Integration.....................................................................................99
11.17 Governing Law...................................................................................99
11.18 Severability of Provisions.....................................................................100
11.19 Headings.......................................................................................100
11.20 Time of the Essence............................................................................100
11.21 Foreign Lenders and Participants...............................................................100
11.22 Hazardous Material Indemnity...................................................................101
11.23 Waiver of Right to Trial by Jury...............................................................101
11.24 Purported Oral Amendments......................................................................102
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Exhibits
A - Bid
B - Bid Option Advance Note
C - Bid Request
D - Commitment Assignment and Acceptance
E - Compliance Certificate
F - Opinion of Counsel
G - Request for Letter of Credit
H - Request for Loan
I - Subsidiary Guaranty
J - Tranche A Note
K - Tranche B Note
L - Tranche C Note
Schedules
1.1A Lender Commitments
1.1B Eligible Assignee Foreign Disqualification Factors
4.4 Subsidiaries
4.4(c) Subsidiary Exceptions
4.6 Adjustments to Predecessor Liabilities
4.7A Adjustments to Predecessor Assets
4.7B 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 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.
REVOLVING LOAN AGREEMENT
Dated as of July 28, 1998
This 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"), Bank of America
National Trust and Savings Association, as Documentation Agent and
Administrative Agent, First Union National Bank and NationsBank, N.A., as
Syndication Agents and BancAmerica Xxxxxxxxx Xxxxxxxx, as Lead Arranger.
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:
"Administrative Agent" means Bank of America National Trust and
Savings Association 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.
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"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.
"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 Revolving Loan Agreement, either as originally
executed or as it may from time to time be supplemented, modified, amended,
restated or extended.
"Aggregate Effective Amount" means, as of any date of determination
and with respect to all Letters of Credit then outstanding, the sum of (a)
the aggregate effective face amounts of all such Letters of Credit not then
paid by the Fronting Lender plus (b) the aggregate amounts paid by the
Fronting Lender under such Letters of Credit not then reimbursed to the
Fronting Lender by Borrower pursuant to Section 2.5(d) and not the subject
of Advances made pursuant to Section 2.5(e).
"Applicable Eurodollar Margin" means, during the continuance of any
Applicable Pricing level and with respect to the Privatization Facilities
and the Working Capital Facility, the interest rate margin set forth below
(expressed in basis points per annum) under the appropriate caption
opposite that Applicable Pricing Level:
Margins
------------------------------------------------
Applicable Privatization Working Capital
Pricing Level Facilities Facility
------------- ---------- --------
I 16.5 15.5
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II 18.0 16.5
III 24.0 21.5
IV 30.0 27.5
V 35.0 32.5
VI 57.5 55.0
; provided that, if Borrower exercises its election pursuant to Section
3.1(e)(vi), the Applicable Eurodollar Margin for Tranche B Loans subsequent
to the Tranche B Conversion Date shall be the sum of the margin set forth
above under the caption "Privatization Facilities" plus 15 basis points.
"Applicable Facility Fee Rate" means, during the continuance of any
Applicable Pricing Level and with respect to the Privatization Facilities
and the Working Capital Facility, the rate set forth below (expressed in
basis points per annum) under the appropriate caption opposite that
Applicable Pricing Level:
Rate
------------------------------------------------
Applicable Privatization Working Capital
Pricing Level Facilities Facility
------------- ---------- --------
I 6.0 7.0
II 7.0 8.5
III 8.5 11.0
IV 10.0 12.5
V 15.0 17.5
VI 17.5 20.0
"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 XxXxxx-Xxxx,
Inc.) ("S&P") and Xxxxx'x Investors Service, Inc. ("Moody's"):
Applicable Credit Rating
Pricing Level (S&P/Moody's)
------------- -------------
I A/A2 or better
II A-/A3
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III BBB+/Baa1
IV BBB/Baa2
V BBB-/Baa3
VI BB+/Ba1 or lower
The following conventions shall apply with respect to the foregoing: (a)
until such time as both S&P and Moody's issue public credit ratings for
Borrower's long-term senior unsecured non-credit-enhanced debt, the
Applicable Pricing Level shall be determined based on the indicative credit
rating set forth in the letter from S&P to Borrower dated June 12, 1998 and
(b) once both S&P and Moody's have issued public credit ratings for such
debt, the higher 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.
"Applicable Standby Letter of Credit Fee Rate" means, as of any date
of determination, the then effective Applicable Eurodollar Rate Margin.
"Bank of America" means Bank of America National Trust and Savings
Association, 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 rate of interest publicly
announced from time to time by Bank of America in San Francisco,
California, as its "reference rate," which 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 and (b) one-half percent per annum above the
Federal Funds Rate. Any change in the reference 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.
"Base Rate Advance" means an Advance made hereunder and specified to
be an Base Rate Advance in accordance with Article 2.
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"Base Rate Loan" means a Loan made hereunder and specified to be an
Base Rate Loan in accordance with Article 2.
"Bid" means a written bid to provide a Bid Option Advance
substantially in the form of Exhibit A, signed by a Responsible Official of
a Lender and properly completed to provide all information required to be
included therein.
"Bid Option Advance" means an Advance made to Borrower by any Lender
not determined by that Lender's Pro Rata Share of any of the Commitments
pursuant to Section 2.4.
"Bid Option Advance Note" means the promissory note made by Borrower
in favor of a Lender to evidence the Bid Option Advances made by that
Lender, substantially in the form of Exhibit B, either as originally
executed or as the same may from time to time be supplemented, modified,
amended, renewed, extended or supplanted.
"Bid Request" means a written request submitted by Borrower to the
Administrative Agent to provide a Bid, substantially in the form of Exhibit
C, signed by a Responsible Official of Borrower and properly completed to
provide all information required to be included therein.
"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.
"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;
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(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 Xxxxx'x Investors Service,
Inc. or A- by Standard & Poor's Rating Group (a division of XxXxxx-Xxxx,
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
Xxxxx'x Investors Service, Inc. or A-2 by Standard & Poor's Rating Group (a
division of
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XxXxxx-Xxxx, 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 Xxxxx'x Investors Service, Inc. and A- by Standard & Poor's
Rating Group (a division of XxXxxx-Xxxx, 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
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 Xxxxx'x Investors Service,
Inc. and A- by Standard & Poor's Rating Group (a division of XxXxxx-Xxxx,
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 Xxxxx'x
Investors Service, Inc. and A2 by Standard & Poor's Rating Group (a
division of XxXxxx-Xxxx, 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,
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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.
"Code" means the Internal Revenue Code of 1986, as amended or replaced
and as in effect from time to time.
"Commercial Letter of Credit" means each Letter of Credit issued to
support the purchase of goods by Borrower which is determined to be a
commercial letter of credit by the Fronting Lender.
"Commitments" means, collectively, the Tranche A Commitment, the
Tranche B Commitment and the Tranche C Commitment.
"Commitment Assignment and Acceptance" means a commitment assignment
and acceptance substantially in the form of Exhibit D.
"Common Stock" means the common stock of Borrower or its successor.
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"Compliance Certificate" means a certificate in the form of Exhibit E,
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.
"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.
"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 $2,000,000, other than (i) Cash, Cash
Equivalents, inventory or other assets sold or otherwise disposed of in the
ordinary course of business of Borrower or its Subsidiary, (ii) assets sold
or otherwise disposed of where substantially similar assets in replacement
thereof have theretofore been acquired, or
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thereafter within six (6) months are acquired, by Borrower or its
Subsidiary and (iii) obsolete assets no longer useful in the business of
Borrower and its Subsidiaries.
"Distribution" means, with respect to any shares of capital stock or
any warrant or option to purchase an equity security or other equity
security issued by a Person, (a) the retirement, redemption, purchase or
other acquisition for Cash or for Property by such Person of any such
security, (b) the declaration or (without duplication) payment by such
Person of any dividend in Cash or in Property on or with respect to any
such security, (c) any Investment by such Person in the holder of 5% or
more of any such security if a purpose of such Investment is to avoid
characterization of the transaction as a Distribution and (d) any other
payment in Cash or Property by such Person constituting a distribution
under applicable Laws with respect to such security.
"Documentation Agent" means Bank of America National Trust and Savings
Association. The Documentation Agent shall have no rights, duties,
allegations or responsibilities beyond those of a Lender.
"Dollars" or "$" 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 with respect to the Privatization Facilities must be organized
under the Laws of the United States of America, any State thereof or the
District of Columbia and must not be subject to any Foreign
Disqualification Factor and provided further that each Eligible Assignee
with respect to the Working Capital Facility 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,
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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. For purposes of the
foregoing, the term "Foreign Disqualification Factor" means (a) the
presence of any of the factors set forth in Paragraph A of Schedule 1.1B
and (b) if so determined by Borrower (which determination shall be
exercised reasonably), the presence of any of the factors set forth in
Paragraph B of Schedule 1.1B.
"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.
"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:
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(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 with respect to a Tranche A Loan shall
extend beyond the Tranche A Maturity Date, no Eurodollar Period with
respect to a Tranche B Loan may extend beyond the Tranche B Maturity Date
and no Eurodollar Period with respect to a Tranche C Loan may extend beyond
the Tranche C 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.
"Facilities" means the credit facilities 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
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(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.
"Fiscal Year" means the fiscal year of Borrower ending on each June
30.
"Fronting Lender" means Bank of America National Trust and Savings
Association.
"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.
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"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 Closing 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. Section 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. Section
1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901, et seq., or as "friable asbestos" pursuant to the Toxic
Substances Control Act, 15 U.S.C. Section 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.
"Initial Public Offering" means the initial public offering of shares
of Common Stock covered by the Registration Statement.
"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 BancAmerica Xxxxxxxxx Xxxxxxxx.
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"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.
"Letters of Credit" means any of the Commercial Letters of Credit or
Standby Letters of Credit issued by the Fronting Lender under the Tranche C
Commitment pursuant to Section 2.5, either as originally issued or as the
same may be supplemented, modified, amended, renewed, extended or
supplanted.
"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 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.
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"Maximum Bid Option Advance" means, with respect to any Bid made by a
Lender, the amount set forth therein as the maximum Bid Option Advance
which the Lender is willing to make in response to the related Bid Request.
"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 Issuance Proceeds" means, with respect to the issuance of
any debt security or equity security by Borrower or any of its
Subsidiaries, the Cash proceeds received by or for the account of Borrower
or such Subsidiary in consideration of such issuance net of (a)
underwriting discounts and commissions actually paid to any Person not an
Affiliate of Borrower and (b) professional fees and disbursements actually
paid in connection therewith.
"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.
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"Note" means any of the Tranche A Notes, Tranche B Notes, Tranche C
Notes or Bid Option Advance Notes and "Notes" means the Tranche A Notes,
Tranche B Notes, Tranche C Notes and Bid Option Advance Notes.
"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 that accrues after the
commencement of any proceeding under any Debtor Relief Law by or against
Borrower or any of the Subsidiary Guarantors.
"Opening Amount" means an amount equal to the Agreed Percentage of the
Stockholders' Equity of Borrower and its Subsidiaries reflected in the
pro-forma balance sheet to be delivered by Borrower to the Lenders pursuant
to Section 7.1(b). For purposes of the foregoing, the term "Agreed
Percentage" means (a) if the Overallotment Option is exercised in full,
80%, (b) if the Overallotment Option is not exercised at all, 75% and (c)
if the Overallotment Option is exercised in part (but not in full), the sum
of 75% plus, for every $3,000,000 of exercise price, 1/10 of 1% (rounded up
or down to the nearest whole percent or, if there is no nearest, up to the
next higher whole percent) up to a maximum of 80%.
"Opinion of Counsel" means the favorable written legal opinion of
Skadden, Arps, Slate, Xxxxxxx & Xxxx, LLP, special counsel to Borrower,
substantially in the form of Exhibit F, 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.
"Overallotment Option" means the overallotment option to purchase
shares of Common Stock granted to the underwriters in connection with the
Initial Public Offering, as described in the Registration Statement.
"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.
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"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;
(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;
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(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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(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.
"Predecessor" means United States Enrichment Corporation, a
wholly-owned United States Government corporation.
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"Privatization" means the transfer on the Closing 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.
"Privatization Facilities" means the credit facilities extended
pursuant to the Tranche A Commitment and the Tranche B Commitment.
"Projections" means the projected financial information dated July 27,
1998 prepared by Borrower and to be contained in the Confidential Offering
Memorandum furnished to the Lenders as part of the syndication process
referred to in Section 5.13.
"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 respective Commitments 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.
"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.
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"Request for Letter of Credit" means a written request for a Letter of
Credit substantially in the form of Exhibit G, signed by a Responsible
Official of Borrower and properly completed to provide all information
required to be included therein.
"Request for Loan" means a written request for a Loan substantially in
the form of Exhibit H, 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
Commitments are then in effect, Lenders having in the aggregate 51% or more
of the Commitments then in effect and (b) as of any date of determination
if the Commitments have 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
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
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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.
"Standby Letter of Credit" means each Letter of Credit that is not a
Commercial Letter of Credit.
"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
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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.
"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 I, either as originally executed or as
it may from time to time be supplemented, modified, amended, extended or
supplanted.
"Syndication Agent" means each of First Union National Bank and
NationsBank, N.A. Each 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).
"Tranche A Commitment" means, subject to Sections 2.6 and 2.7,
$400,000,000. The respective Pro Rata Shares of the Lenders with respect to
the Tranche A Commitment are set forth in Schedule 1.1A.
"Tranche A Loan" means a Loan made under the Tranche A Commitment.
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"Tranche A Maturity Date" means the date that is 364 days after the
Closing Date.
"Tranche A Note" means any of the promissory notes made by Borrower to
a Lender evidencing Advances under that Lender's Pro Rata Share of the
Tranche A Commitment, substantially in the form of Exhibit J, either as
originally executed or as the same may from time to time be supplemented,
modified, amended, renewed, extended or supplanted.
"Tranche B Commitment" means, subject to Section 2.7, $150,000,000.
The respective Pro Rata Shares of the Lenders with respect to the Tranche B
Commitment are set forth in Schedule 1.1A.
"Tranche B Conversion Date" means the effective date upon which
Borrower exercises its election under Section 3.1(d)(vi).
"Tranche B Loan" means a Loan made under the Tranche B Commitment.
"Tranche B Maturity Date" means (a) the date that is 364 days after
the Closing Date or (b) if Borrower exercises its election under Section
3.1(d)(vi), the date that is one (1) year and 364 days after the Closing
Date.
"Tranche B Note" means any of the promissory notes made by Borrower to
a Lender evidencing Advances under that Lender's Pro Rata Share of the
Tranche B Commitment, substantially in the form of Exhibit K, either as
originally executed or as the same may from time to time be supplemented,
modified, amended, renewed, extended or supplanted.
"Tranche C Commitment" means, subject to Section 2.7, $150,000,000.
The respective Pro Rata Shares of the Lenders with respect to the Tranche
C Commitment are set forth in Schedule 1.1A.
"Tranche C Loan" means a Loan made under the Tranche C Commitment.
"Tranche C Maturity Date" means the fifth anniversary of the Closing
Date.
"Tranche C Note" means any of the promissory notes made by Borrower to
a Lender evidencing Advances under that Lender's Pro Rata Share of the
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Tranche C Commitment, substantially in the form of Exhibit L, either as
originally executed or as the same way from time to time be supplemented,
modified, amended, renewed, extended or supplanted.
"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 Closing Date (a) will become
a Wholly-Owned Subsidiary of Borrower and (b) will succeed 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 Closing 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.
"Working Capital Facility" means the credit facility extended pursuant
to the Tranche C Commitment.
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 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
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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 AND LETTERS OF CREDIT
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 Tranche A Maturity Date, each Lender shall, pro rata
according to that Lender's Pro Rata Share of the then applicable Tranche
A Commitment, make Advances to Borrower under the Tranche A Commitment in
such amounts as Borrower may request that do not result in the aggregate
principal amount outstanding under the Tranche A Notes to exceed the
Tranche A Commitment. Subject to the limitations set forth herein,
Borrower may borrow, repay and reborrow under the Tranche A Commitment
without premium or penalty.
(b) 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 Tranche B Conversion Date, each Lender shall, pro rata
according to that Lender's Pro Rata Share of the then applicable Tranche
B Commitment, make Advances to Borrower under the Tranche B Commitment in
such amounts as Borrower may request that do not result in the aggregate
principal amount outstanding under the Tranche B Notes to exceed the
Tranche B Commitment. Subject to the limitations set forth herein,
Borrower may borrow, repay and reborrow under the Tranche B Commitment
without premium or penalty.
(c) 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 Tranche C Maturity Date, each Lender shall, pro rata
according to that Lender's Pro Rata Share of the then applicable Tranche
C Commitment, make Advances to Borrower under the Tranche C Commitment in
such amounts as Borrower may request that do not result in the sum of (i)
the aggregate principal amount outstanding under the Tranche C Notes plus
(ii) the aggregate principal amount outstanding under the Bid Option
Advance Notes plus (iii) the Aggregate Effective Amount of all
outstanding Letters of Credit to exceed the Tranche C Commitment. Subject
to the limitations set forth herein, Borrower may borrow, repay and
reborrow under the Tranche C Commitment without premium or penalty.
(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,
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(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) Notwithstanding Section 2.1(d), during the period commencing
on the Closing Date and ending on the earlier of (i) three (3) months
after the Closing Date or (ii) the completion of the syndication process
referred to in Section 5.13, Borrower may not request a Eurodollar Rate
Loan with a Eurodollar Period longer than one (1) month.
(h) The Advances made by each Lender under the Tranche A
Commitment shall be evidenced by that Lender's Tranche A Note. The
Advances made by each Lender under the Tranche B Commitment shall be
evidenced by that Lender's Tranche B Note. The Advances made by each
Lender under the Tranche C Commitment shall be evidenced by that Lender's
Tranche C 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.
(a) 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.
(b) 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.
(c) 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.
(d) No Eurodollar Rate Loan may be requested during the
continuation of a Default or Event of Default.
(e) Nothing contained herein shall require any Lender to fund any
Eurodollar Rate Advance in the Designated Eurodollar Market.
2.4 Bid Option Advances.
(a) Subject to the terms and conditions hereof, at any time and
from time to time from the Closing Date through the Tranche C Maturity
Date, each Lender may in its sole and absolute discretion make Bid Option
Advances to Borrower in such principal amounts as Borrower may request
pursuant to a Bid Request that do not result in (i) the aggregate
outstanding principal Indebtedness evidenced by the Bid Option Advance
Notes being in excess of
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$100,000,000 or (ii) the sum of (A) the aggregate principal Indebtedness
evidenced by the Bid Option Advance Notes plus (B) the aggregate
principal Indebtedness evidenced by the Tranche C Notes plus (C) the
Aggregate Effective Amount of all outstanding Letters of Credit being in
excess of the then applicable Tranche C Commitment.
(b) Borrower may request Bid Option Advances by submitting a Bid
Request to the Administrative Agent, which Bid Request shall specify the
relevant date, amount and maturity for the proposed Bid Option Advance
and shall state whether a Bid is requested on the basis of a fixed
interest rate (an "Absolute Rate Bid") or on the basis of a margin over
the Eurodollar Rate (a "Eurodollar Margin Bid"). The Bid Request must be
received by the Administrative Agent not later than 9:00 a.m. California
time on a Banking Day that is at least one (1) Banking Day prior to the
date of the proposed Bid Option Advance if an Absolute Rate Bid is
requested; if a Eurodollar Margin Bid is requested, it must be received
by the Administrative Agent at least five (5) Banking Days prior to the
date of the proposed Bid Option Advance.
(c) Unless the Administrative Agent otherwise agrees, in its sole
and absolute discretion, no Bid Request shall be made by Borrower if
Borrower has, within the immediately preceding five (5) Banking Days,
submitted another Bid Request.
(d) Each Bid Request must be made for a Bid Option Advance of at
least $5,000,000 and shall be in an integral multiple of $1,000,000.
(e) No Bid Request shall be made for a Bid Option Advance with a
maturity of less than 7 days or more than 180 days, or with a maturity
date subsequent to the Tranche C Maturity Date.
(f) The Administrative Agent shall, promptly after receipt of a
Bid Request, notify the Lenders thereof by telephone and provide the
Lenders a copy thereof by telecopier. Any Lender may, by written notice
to the Administrative Agent, advise the Administrative Agent that it
elects not to be so notified of Bid Requests, in which case the
Administrative Agent shall not notify such Lender of the Bid Request.
(g) Each Lender receiving a Bid Request may, in its sole and
absolute discretion, make or not make a Bid responsive to the Bid
Request. Each Bid shall be submitted to the Administrative Agent not
later than 7:30 a.m. (or, in the case of Bank of America, submitted
directly to Borrower not later
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than 7:15 a.m. with a copy to the Administrative Agent) California time,
in the case of a Eurodollar Margin Bid, on the date which is four (4)
Banking Days prior to the requested Bid Option Advance and, in the case
of an Absolute Rate Bid, on the date of the requested Bid Option Advance.
Any Bid received by the Administrative Agent after 7:30 a.m. (or 7:15
a.m. in the case of Bank of America) on such date shall be disregarded
for purposes of this Agreement.
(h) Each Bid shall specify the fixed interest rate or the margin
over the Eurodollar Rate, as applicable, for the offered Maximum Bid
Option Advance set forth in the Bid. The Maximum Bid Option Advance
offered by a Lender in a Bid may be less than the Bid Option Advance
requested by Borrower in the Bid Request, but shall be an integral
multiple of $1,000,000. Any Bid which offers an interest rate other than
a fixed interest rate or a margin over the Eurodollar Rate, is in a form
other than set forth in Exhibit A or which otherwise contains any term,
condition or provision not contained in the Bid Request shall be
disregarded for purposes of this Agreement. A Bid once submitted to the
Administrative Agent shall be irrevocable until 8:30 a.m. California
time, in the case of a Eurodollar Margin Bid, on the date which is three
(3) Banking Days prior to the requested Bid Option Advance and, in the
case of an Absolute Rate Bid, on the date of the proposed Bid Option
Advance set forth in the related Bid Request, and shall expire by its
terms at such time unless accepted by Borrower prior thereto.
(i) Promptly after 7:30 a.m. California time, in the case of a
Eurodollar Margin Loan, on the date which is four (4) Banking Days prior
to the date of the proposed Bid Option Advance and, in the case of an
Absolute Rate Bid, on the date of the proposed Bid Option Advance, the
Administrative Agent shall notify Borrower of the names of the Lenders
providing Bids to the Administrative Agent at or before 7:30 a.m. on that
date (or 7:15 a.m. in the case of the Bank of America) and the Maximum
Bid Option Advance and fixed interest rate or margin over the Eurodollar
Rate set forth by each such Lender in its Bid. The Administrative Agent
shall promptly confirm such notification in writing delivered in person
or by telecopier to Borrower.
(j) Borrower may, in its sole and absolute discretion, reject any
or all of the Bids. If Borrower accepts any Bid, the following shall
apply: (a) Borrower must accept all Absolute Rate Bids at all lower fixed
interest rates before accepting any portion of an Absolute Rate Bid at a
higher fixed interest rate, (b) Borrower must accept all Eurodollar
Margin Bids at all lower margins over the Eurodollar Rate before
accepting any portion of a Eurodollar Margin Bid at a higher margin over
the Eurodollar Rate, (c) if two or more Lenders
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have submitted a Bid at the same fixed interest rate or margin, then
Borrower must accept either all of such Bids or accept such Bids in the
same proportion as the Maximum Bid Option Advance of each Lender bears to
the aggregate Maximum Bid Option Advances of all such Lenders, and (d)
Borrower may not accept Bids for an aggregate amount in excess of the
requested Bid Option Advance set forth in the Bid Request. Acceptance by
Borrower of a Eurodollar Margin Rate Bid must be made prior to 8:30 a.m.
on the date which is three (3) Banking Days prior to the requested Bid
Option Advance and acceptance by Borrower of an Absolute Rate Bid must be
made prior to 8:30 a.m. on the date of the requested Bid Option Advance.
Acceptance of a Bid by Borrower shall be irrevocable upon communication
thereof to the Administrative Agent. The Administrative Agent shall
promptly notify each of the Lenders whose Bid has been accepted by
Borrower by telecopier to such Lenders. Any Bid not accepted by Borrower
by 8:30 a.m., in the case of a Eurodollar Margin Bid, on the date which
is three (3) Banking Days prior to the proposed Bid Option Advance or, in
the case of an Absolute Rate Bid, on the date of the proposed Bid, shall
be deemed rejected.
(k) In the case of a Eurodollar Margin Bid, the Administrative
Agent shall determine the Eurodollar Rate on the date which is two (2)
Eurodollar Banking Days prior to the date of the proposed Bid Option
Advance, and shall promptly thereafter notify Borrower and the Lenders
whose Eurodollar Margin Bids were accepted by Borrower of such Eurodollar
Rate.
(l) A Lender whose Bid has been accepted by Borrower shall make
the Bid Option Advance in accordance with the Bid Request and with its
Bid, subject to the applicable conditions set forth in this Agreement, by
making funds immediately available to the Administrative Agent at the
Administrative Agent's Office in the amount of such Bid Option Advance
not later than 12:00 noon, California time, on the date set forth in the
Bid Request. The Administrative Agent shall then promptly make the Bid
Option Advance available to Borrower by such means as it may request in
immediately available funds.
(m) The Administrative Agent shall notify Borrower and the Lenders
promptly after any Bid Option Advance is made of the amounts and maturity
of such Bid Option Advances and the identity of the Lenders making such
Bid Option Advances.
(n) The Bid Option Advances made by a Lender shall be evidenced by
that Lender's Bid Option Advance Note.
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2.5 Letters of Credit.
(a) Subject to the terms and conditions hereof, at any time and
from time to time commencing on the Closing Date through the Tranche C
Maturity Date, the Fronting Lender shall issue such Letters of Credit
under the Tranche C Commitment as Borrower may request by a Request for
Letter of Credit; provided that giving effect to all such Letters of
Credit, (i) the sum of (A) the aggregate principal amount outstanding
under the Tranche C Notes plus (B) the aggregate principal amount
outstanding under the Bid Option Advance Notes plus (C) the Aggregate
Effective Amount of all outstanding Letters of Credit, does not exceed
the then applicable Tranche C Commitment and (ii) the Aggregate Effective
Amount under all outstanding Letters of Credit does not exceed
$75,000,000. Each Letter of Credit shall be in a form acceptable to the
Fronting Lender. Unless all the Lenders otherwise consent in a writing
delivered to the Administrative Agent, the term of any Letter of Credit
shall not extend beyond the Tranche C Maturity Date.
(b) Each Request for Letter of Credit shall be submitted to the
Fronting Lender, with a copy to the Administrative Agent, at least two
(2) Banking Days prior to the date upon which the related Letter of
Credit is proposed to be issued. The Administrative Agent shall promptly
notify the Fronting Lender whether such Request for Letter of Credit, and
the issuance of a Letter of Credit pursuant thereto, conforms to the
requirements of this Agreement. Upon issuance of a Letter of Credit, the
Fronting Lender shall promptly notify the Administrative Agent, and the
Administrative Agent shall promptly notify the Lenders, of the amount and
terms thereof.
(c) Upon the issuance of a Letter of Credit, each Lender shall be
deemed to have purchased a pro rata participation in such Letter of
Credit from the Fronting Lender in an amount equal to that Lender's Pro
Rata Share of the Tranche C Commitment. Without limiting the scope and
nature of each Lender's participation in any Letter of Credit, to the
extent that the Fronting Lender has not been reimbursed by Borrower for
any payment required to be made by the Fronting Lender under any Letter
of Credit, each Lender shall, pro rata according to its Pro Rata Share of
the Tranche C Commitment, reimburse the Fronting Lender through the
Administrative Agent promptly upon demand for the amount of such payment.
The obligation of each Lender to so reimburse the Fronting Lender shall
be absolute and unconditional and shall not be affected by the occurrence
of an Event of Default or any other occurrence or event. Any such
reimbursement shall not relieve or otherwise impair the
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obligation of Borrower to reimburse the Fronting Lender for the amount of
any payment made by the Fronting Lender under any Letter of Credit
together with interest as hereinafter provided.
(d) Borrower agrees to pay to the Fronting Lender through the
Administrative Agent an amount equal to any payment made by the Fronting
Lender with respect to each Letter of Credit within one (1) Banking Day
after demand made by the Fronting Lender therefor, together with interest
on such amount from the date of any payment made by the Fronting Lender
at the rate applicable to Base Rate Loans for two (2) Banking Days and
thereafter at the Default Rate. The principal amount of any such payment
shall be used to reimburse the Fronting Lender for the payment made by it
under the Letter of Credit and, to the extent that the Lenders have not
reimbursed the Fronting Lender pursuant to Section 2.5(c), the interest
amount of any such payment shall be for the account of the Fronting
Lender. Each Lender that has reimbursed the Fronting Lender pursuant to
Section 2.5(c) for its Pro Rata Share of any payment made by the Fronting
Lender under a Letter of Credit shall thereupon acquire a pro rata
participation, to the extent of such reimbursement, in the claim of the
Fronting Lender against Borrower for reimbursement of principal and
interest under this Section 2.5(d) and shall share, in accordance with
that pro rata participation, in any principal payment made by Borrower
with respect to such claim and in any interest payment made by Borrower
(but only with respect to periods subsequent to the date such Lender
reimbursed the Fronting Lender) with respect to such claim.
(e) Borrower may, pursuant to a Request for Loan, request that
Advances be made pursuant to Section 2.1(c) to provide funds for the
payment required by Section 2.5(d) and, for this purpose, the conditions
precedent set forth in Article 8 shall not apply. The proceeds of such
Advances shall be paid directly to the Fronting Lender to reimburse it
for the payment made by it under the Letter of Credit.
(f) If Borrower fails to make the payment required by Section
2.5(d) within the time period therein set forth, in lieu of the
reimbursement to the Fronting Lender under Section 2.5(c) the Fronting
Lender may (but is not required to), without notice to or the consent of
Borrower, instruct the Administrative Agent to cause Advances to be made
by the Lenders under the Tranche C Commitment in an aggregate amount
equal to the amount paid by the Fronting Lender with respect to that
Letter of Credit and, for this purpose, the conditions precedent set
forth in Article 8 shall not apply. The
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proceeds of such Advances shall be paid directly to the Fronting Lender
to reimburse it for the payment made by it under the Letter of Credit.
(g) The issuance of any supplement, modification, amendment,
renewal, or extension to or of any Letter of Credit shall be treated in
all respects (other than for purposes of Section 3.6(a)) the same as the
issuance of a new Letter of Credit.
(h) The obligation of Borrower to pay to the Fronting Lender the
amount of any payment made by the Fronting Lender under any Letter of
Credit shall be absolute, unconditional, and irrevocable, subject only to
performance by the Fronting Lender of its obligations to Borrower under
Uniform Commercial Code Section 5109. Without limiting the foregoing,
Borrower's obligations shall not be affected by any of the following
circumstances:
(i) any lack of validity or enforceability prior to its
stated expiration date of the Letter of Credit, this Agreement, or any
other agreement or instrument relating thereto;
(ii) any amendment or waiver of or any consent to departure
from the Letter of Credit, this Agreement, or any other agreement or
instrument relating thereto, with the consent of Borrower;
(iii) the existence of any claim, setoff, defense, or other
rights which Borrower may have at any time against the Fronting Lender,
the Administrative Agent or any Lender, any beneficiary of the Letter
of Credit (or any persons or entities for whom any such beneficiary may
be acting) or any other Person, whether in connection with the Letter
of Credit, this Agreement, or any other agreement or instrument
relating thereto, or any unrelated transactions;
(iv) any demand, statement, or any other document presented
under the Letter of Credit proving to be forged, fraudulent, invalid,
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever so long as any such document
appeared substantially to comply with the terms of the Letter of
Credit;
(v) payment by the Fronting Lender in good faith under the
Letter of Credit against presentation of a draft or any accompanying
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document which does not strictly comply with the terms of the Letter of
Credit;
(vi) the existence, character, quality, quantity,
condition, packing, value or delivery of any Property purported to be
represented by documents presented in connection with any Letter of
Credit or any difference between any such Property and the character,
quality, quantity, condition, or value of such Property as described
in such documents;
(vii) the time, place, manner, order or contents of
shipments or deliveries of Property as described in documents presented
in connection with any Letter of Credit or the existence, nature and
extent of any insurance relative thereto;
(viii) the solvency or financial responsibility of any party
issuing any documents in connection with a Letter of Credit;
(ix) any failure or delay in notice of shipments or
arrival of any Property;
(x) any error in the transmission of any message relating
to a Letter of Credit not caused by the Fronting Lender, or any delay
or interruption in any such message;
(xi) any error, neglect or default of any correspondent of
the Fronting Lender in connection with a Letter of Credit;
(xii) any consequence arising from acts of God, war,
insurrection, civil unrest, disturbances, labor disputes, emergency
conditions or other causes beyond the control of the Fronting Lender;
(xiii) so long as the Fronting Lender in good faith
determines that the document appears substantially to comply with the
terms of the Letter of Credit, the form, accuracy, genuineness or legal
effect of any document referred to in any document submitted to the
Fronting Lender in connection with a Letter of Credit; and
(xiv) where the Fronting Lender has acted in good faith and
observed general banking usage, any other circumstances whatsoever.
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(i) The Fronting Lender shall be entitled to the protection
accorded to the Administrative Agent pursuant to Section 10.6, mutatis
mutandis.
(j) The Uniform Customs and Practice for Documentary Credits, as
published in its most current version by the International Chamber of
Commerce at the time of issuance of a Letter of Credit, shall be deemed a
part of this Section and shall apply to such Letter of Credit to the
extent not inconsistent with applicable Law.
2.6 Voluntary Reduction of Commitments. 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 any of the Commitments. The Administrative Agent shall promptly
notify the Lenders of any reduction or termination of any Commitment under this
Section.
2.7 Specified Reductions of Tranche A Commitment. The Tranche A
Commitment shall be reduced (a) on the date a prepayment of the Tranche A Notes
is required under Section 3.1.(e)(i), by the amount of such required prepayment,
(b) on the date a prepayment of the Tranche A Notes is required under Section
3.1.(e)(ii), by the amount of such required prepayment and (c) on the date a
prepayment of the Tranche A Notes is required under Sections 3.1.(e)(iii) or
3.1(e)(iv), by the amount of such required prepayment.
2.8 Optional Termination of Commitments. 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 Commitments,
in which case the Commitments 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.
2.9 Administrative Agent's Right to Assume Funds Available for
Advances. Unless the Administrative Agent shall have been notified by any Lender
no
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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 Commitments 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.
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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
Sections 3.1(d) and 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 Sections
3.1(d) and 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 Tranche A Notes at any time exceeds the
then applicable Tranche A Commitment shall be payable immediately;
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(ii) the amount, if any, by which the principal
Indebtedness evidenced by the Tranche B Notes at any time exceeds the
then applicable Tranche B Commitment shall be payable immediately;
(iii) the amount, if any, by which the sum of (A) the
principal Indebtedness evidenced by the Tranche C Notes plus (B) the
principal Indebtedness evidenced by the Bid Option Advance Notes plus
(C) the Aggregate Effective Amount of all outstanding Letters of Credit
at any time exceeds the then applicable Tranche C Commitment shall be
payable immediately;
(iv) the principal Indebtedness evidenced by each Bid
Option Advance Note shall be payable, with respect to each Bid Option
Advance, on the maturity date applicable thereto set forth in the
related Bid;
(v) the principal Indebtedness evidenced by the Tranche A
Notes shall in any event be payable on the Tranche A Maturity Date;
(vi) the principal Indebtedness evidenced by the Tranche B
Notes shall be payable on the date that is 364 days after the Closing
Date, unless Borrower notifies the Administrative Agent that it elects
to convert the Tranche B Loan to a term loan due and payable on the
date that is one (1) year after such date, and shall in any event be
payable on the Tranche B Maturity Date; and
(vii) the principal Indebtedness evidenced by the Tranche C
Notes and the Bid Option Advance Notes shall in any event be payable on
the Tranche C Maturity Date.
(e) The principal Indebtedness evidenced by the Tranche A Notes
shall be prepaid on or before the third Banking Day following the receipt
by Borrower or any of its Subsidiaries of (i) Net Cash Sales Proceeds
from Dispositions in excess of $5,000,000 in any Fiscal Year, by an
amount equal to the amount of such Net Cash Sales Proceeds in excess of
$5,000,000, (ii) Net Cash Issuance Proceeds from the issuance of debt
securities of Borrower or any of its Subsidiaries (other than an issuance
of debt securities to Borrower or to a Wholly-Owned Subsidiary), by an
amount equal to 100% of such Net Cash Issuance Proceeds, (iii) Net Cash
Issuance Proceeds from the issuance of Common Stock pursuant to the
Overallotment Option, but not in excess of
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$75,000,000 and (iv) Net Cash Issuance Proceeds from the issuance of
equity securities of Borrower or any of its Subsidiaries (other than an
issuance of equity securities pursuant to the Overallotment Option or to
Borrower or to a Wholly-Owned Subsidiary or to employees or former
employees of Borrower pursuant to an employee stock option plan
maintained by Borrower), by an amount equal to 100% of such Net Cash
Issuance Proceeds.
(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 Commitments, a facility fee equal to the Applicable Facility Fee Rate per
annum times the Commitments 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 Commitments, a utilization fee equal to five (5) basis points per
annum times the sum of (a) the aggregate Indebtedness evidenced by the Notes
plus (b) the Aggregate
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Effective Amount of all outstanding Letters of Credit for each day (or portion
thereof) that such sum is in excess of 50% of the Commitments. The utilization
fee shall be payable quarterly in arrears on each Quarterly Payment Date.
3.5 Refinancing Fee. If the Tranche A Commitment has not been reduced
to zero and terminated by the date that is six (6) months after the Closing
Date, Borrower shall pay to the Administrative Agent, for the ratable accounts
of the Lenders according to their Pro Rata Share of the Tranche A Commitment, a
refinancing fee equal to fifteen (15) basis points times the Tranche A
Commitment. If the Tranche B Commitment has not been reduced to zero by the date
that is six (6) months after the Closing Date, Borrower shall pay to the
Administrative Agent, for the ratable accounts of the Lenders according to their
Pro Rata Share of the Tranche B Commitment, a refinancing fee equal to fifteen
(15) basis points times the Tranche B Commitment. Such fees shall be payable, if
applicable, on the date that is six (6) months after the Closing Date.
3.6 Letter of Credit Fees. With respect to each Letter of Credit,
Borrower shall pay the following fees:
(a) concurrently with the issuance of each Standby Letter of
Credit, a letter of credit fronting fee to the Fronting Lender for the
sole account of the Fronting Lender, in an amount equal to 10 basis
points per annum times the face amount of such Standby Letter of Credit
through the termination or expiration of such Standby Letter of Credit;
(b) concurrently with the issuance of each Standby Letter of
Credit, to the Administrative Agent for the ratable account of the
Lenders in accordance with their Pro Rata Share of the Tranche C
Commitment, a standby letter of credit fee in an amount equal to the
Applicable Standby Letter of Credit Fee Rate as of the date of such
issuance times the face amount of such Standby Letter of Credit through
the termination or expiration of such Standby Letter of Credit, which the
Administrative Agent shall promptly pay to the Lenders; and
(c) concurrently with each issuance, negotiation, drawing or
amendment of each Commercial Letter of Credit, to the Fronting Lender for
the sole account of the Fronting Lender, issuance, negotiation, drawing
and amendment fees in the amounts set forth from time to time as the
Fronting Lender's published scheduled fees for such services.
Each of the fees payable with respect to Letters of Credit under this
Section is earned when due and is nonrefundable.
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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 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.
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(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;
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
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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
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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 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 Sections 2.1(a), 2.1(b)
or 2.1(c) 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
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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 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
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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
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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
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.
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(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 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 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
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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
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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 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 Commitments in an
amount equal to the Pro Rata Share of the Commitments 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.
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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
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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.
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 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, 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, 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.
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(b) Each Subsidiary is a legal entity of the type described in
Schedule 4.4 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 Predecessor for the Fiscal Year ended June
30, 1997 and (b) the unaudited balance sheet and statement of operations of
Predecessor for the Fiscal Quarter ended March 31, 1998. The financial
statements described in clause (a) fairly present in all material respects the
financial condition, results of operations and changes in financial position,
and the balance sheet and statement of operations described in clause (b) fairly
present the financial condition and results of operations of Predecessor 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.
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(b), other than (a)
liabilities and contingent liabilities arising in the ordinary course of
business since the date of such financial statements and (b) the matters set
forth in Schedule 4.6. As of the Closing Date, no circumstance or event has
occurred that constitutes a Material Adverse Effect since March 31, 1998.
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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(b), 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, (b) uranium inventory owned by customers of
Predecessor or USEC (Delaware) for which a corresponding liability in favor of
such customers is reflected in such balance sheet and (c) the matters set forth
in Schedule 4.7A. Such Property is free and clear of all Liens and Rights of
Others, other than Liens or Rights of Others described in Schedule 4.7B 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 xxxx, 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
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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.
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.
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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 Projections. As of the Closing Date, to the best knowledge of
Borrower, the assumptions set forth in the Projections are reasonable and
consistent with each other and with all facts known to Borrower, and the
Projections are reasonably based on such assumptions. Nothing in this Section
4.17 shall be construed as a representation or covenant that the Projections in
fact will be achieved.
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
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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 The Privatization. The Privatization has been consummated on the
Closing Date as described in the Registration Statement and in compliance in all
material respects with all applicable Laws.
4.21 Registration Statement. The Registration Statement (excluding any
pro forma financial information or projections included in the Registration
Statement) complied as of the Closing Date in all material respects with the
requirements of the Securities Act of 1933, as amended, and the rules and
regulations thereunder applicable to the Registration Statement. The
Registration Statement (excluding any pro forma financial information or
projections included in the Registration Statement) does not as of the Closing
Date contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
4.22 Pre- Privatization Liabilities. Except for those liabilities
described in the Memorandum of Agreement dated April 6, 1998 between Predecessor
and the Office of Management and Budget (which liabilities are estimated to be
approximately $65,000,000 as of December 31, 1997), the United States Government
has retained all liabilities of Predecessor (including liabilities under
Hazardous Materials Laws) arising prior to the Closing Date or attributable to
periods prior to the Closing Date.
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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 any of the Commitments 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
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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.
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 (a) Loans under the
Privatization Facilities to fund a portion of the payment to the United States
Government in connection with the Privatization, to pay transactional expenses
and to provide working capital and (b) Loans under the Working Capital Facility
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
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(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.
5.12 Year 2000 Compliance. Take such steps as are reasonably necessary
to assure that, prior to November 1, 1999, (a) Borrower and its Subsidiaries are
Year 2000 Compliant and (b) all customers and vendors of Borrower and its
Subsidiaries that are material to the business of Borrower and whose ability to
perform their business obligations to Borrower may be materially affected by
their not being Year 2000 Compliant are Year 2000 Compliant. Such steps shall
include the performance of a comprehensive review and assessment of all data
storage and operating systems and the adoption of a detailed plan and budget for
the remediation, monitoring and testing of such systems. The term "Year 2000
Compliant" means, for purposes of the foregoing, that all hardware, software,
firmware, equipment, goods and systems used by a Person, or which are material
to the business operations or financial condition of a Person, will properly
perform date-sensitive functions on and after January 1, 2000.
5.13 Syndication Process. Cooperate in such respects as may be
requested by the Lead Arranger in connection with the syndication of the
Facilities, including the provision of information (in form and substance
reasonably acceptable to the Lead Arranger) for inclusion in written materials
furnished to prospective syndicate members and the participation by Senior
Officers in meetings with prospective syndicate members. Borrower expressly
agrees that, at any time during the three (3) week period immediately following
the general meeting of Lenders with Borrower as part of the syndication process,
the Lead Arranger may, with the consent of Borrower (which shall not be
unreasonably withheld), change the pricing, terms and structure (other than the
aggregate amount of the Commitments) of any of the Facilities
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if the Lead Arranger determines that such changes are advisable to assure a
successful syndication.
Article 6
NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any other Obligation remains
unpaid, or any portion of any of the Commitments 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:
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(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);
or (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 (b)
withdraw, completely or partially, from any Multiemployer Plan if to do so could
reasonably be expected to result in a Material Adverse Effect.
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;
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(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) the Opening Amount,
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
Closing Date and not included in the Opening Amount.
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 .55 to 1.00.
6.11 Investments. Make or suffer to exist any Investment, other than:
(a) Investments in existence on the Closing Date and disclosed on
Schedule 6.11;
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(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 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 and (e) 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 any of the
Commitments 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) As soon as practicable, and in any event not later than
September 30,1998, the consolidated balance sheet of Predecessor and its
Subsidiaries as at the end of its fiscal year ended June 30, 1998 and the
consolidated statement of income and cash flows, in each case of
Predecessor 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
Xxxxxx Xxxxxxxx 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;
(b) Concurrently with the financial statements required pursuant
to Section 7.1(a), a pro-forma consolidated balance sheet of Borrower and
its Subsidiaries as of the Closing Date, which balance sheet shall be
based on the balance sheet as of June 30, 1998 delivered pursuant to
Section 7.1(a) and be adjusted to reflect the Initial Public Offering,
the Privatization, the Indebtedness incurred under this Agreement and all
other transactions occurring on the Closing Date, which pro-forma balance
sheet shall be certified by the chief financial officer of Borrower as
fairly presenting the pro-forma financial condition of Borrower and its
Subsidiaries as of the Closing Date;
(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
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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
Xxxxxx Xxxxxxxx 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;
(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
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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 Xxxxx'x 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.
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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 obligation of each Lender to make the
initial Advance to be made by it, and the obligation of the Fronting Lender to
issue the initial Letter of Credit, is subject to the following conditions
precedent, each of which shall be satisfied prior to the making of the initial
Advances (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) Tranche A Notes executed by Borrower in favor of each
Lender, each in a principal amount equal to that Lender's Pro Rata
Share of the Tranche A Commitment;
(3) Tranche B Notes executed by Borrower in favor of each
Lender, each in a principal amount equal to that Lender's Pro Rata
Share of the Tranche B Commitment;
(4) Tranche C Notes executed by Borrower in favor of each
Lender, each in a principal amount equal to that Lender's Pro Rata
Share of the Tranche C Commitment;
(5) Bid Option Advance Notes executed by Borrower in favor of
each Lender, each in the principal amount of $100,000,000;
(6) the Subsidiary Guaranty executed by the Subsidiary
Guarantors;
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(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) a copy of each of the operative documents effecting the
legal process by which Predecessor becomes USEC (Delaware), certified
by a Senior Officer of Borrower;
(10) a copy of the Registration Statement;
(11) a Certificate of the chief financial officer of Borrower
certifying that the representation contained in Section 4.17 is, to the
best of his or her knowledge, true and correct;
(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.
(c) The Privatization shall have been (or shall concurrently be)
consummated.
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(d) The Initial Public Offering shall have been (or shall
concurrently be) consummated with gross cash proceeds of not less than
$1,000,000,000.
(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, Xxxxxxx & Xxxxxxx LLP, special counsel
to the Administrative Agent.
(i) The Closing Date shall have occurred on or before September
30, 1998.
8.2 Any Advance. The obligation of each Lender to make any Advance,
and the obligation of the Fronting Lender to issue any Letter of Credit, 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):
(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 Facilities are explicitly
in support of authorized or outstanding commercial paper of Borrower;
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(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, or a Request for Letter of Credit (as applicable), 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.
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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, 3.4, 3.5 or 3.6, 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
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$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
(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,
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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 Facilities are explicitly in support of authorized or outstanding
commercial paper of Borrower.
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 Commitments 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
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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 Commitments 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) the Fronting Lender may, with the approval of the
Administrative Agent on behalf of the Requisite Lenders, demand
immediate payment by Borrower of an amount equal to the aggregate
amount of all outstanding Letters of Credit to be held by the Fronting
Lender in an interest-bearing cash collateral account as collateral
hereunder; and
(3) the Requisite Lenders may request the Administrative Agent
to, and the Administrative Agent thereupon shall, terminate the
Commitments 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 Commitments 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) an amount equal to the aggregate amount of all outstanding
Letters of Credit shall be immediately due and payable to the
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Fronting Lender without notice to or demand upon Borrower, which are
expressly waived by Borrower, to be held by the Fronting Lender in an
interest-bearing cash collateral account as collateral hereunder; 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.
(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
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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 National Trust and Savings
Association in its individual capacity. Bank of America National Trust and
Savings Association (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 National Trust and Savings Association (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
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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.
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
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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;
(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 profes-
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sionals 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 Commitments (if the Commitments are then in effect) or
in accordance with its proportion of the aggregate Indebtedness then evidenced
by the Notes (if the Commitments have then been terminated), indemnify and hold
the
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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 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
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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 3.4 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, principal prepayments or the rate of interest payable on, any
Note, or the amount of the Commitments 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 Commitments;
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(c) To amend the provisions of the definition of "Requisite
Lenders", "Tranche B Conversion Date", "Tranche A Maturity Date", or
"Tranche B Maturity Date, or "Tranche C 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.
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.
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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 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
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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 Commitments; 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 Commitments of the assigning Lender,
the assignment shall not assign a Pro Rata Share of the Commitments that
is equivalent to less than $10,000,000, (iv) any assignment of a Pro Rata
Share of the Tranche A Commitment must include an assignment of the same
Pro Rata Share of the Tranche B Commitment, (v) an assignment of a Pro
Rata Share of the Tranche A Commitment and Tranche B Commitment
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may, but need not, include an assignment of the Tranche C Commitment, and
vice versa, 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 Commitments 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 Notes) to such assignee Lender,
Notes evidencing that assignee Lender's Pro Rata Share of the
Commitments, and to the assigning Lender, Notes 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 warranty that it is the legal
and beneficial owner of the Pro Rata Share of the Commitments 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.
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(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 Commitments 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 1.1A 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
Commitments listed therein for all purposes hereof, and no assignment or
transfer of any such Pro Rata Share of the Commitments 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 Commitments 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
Commitments.
(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 Commitments; 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
participation interest shall be expressed as a percentage of the granting
Lender's Pro Rata
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Share of the Commitments as it then exists and shall not restrict an
increase in the Commitments, or in the granting Lender's Pro Rata Share
of the Commitments, 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
any 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.
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, 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
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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
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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
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
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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 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
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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 Sections 3.2 and 3.6,
comprises the complete and integrated agreement of the parties on the subject
matter hereof and supersedes all prior agreements (including the commitment
letter between the Arranger, Bank of America and Borrower dated July 10, 1998),
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.
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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 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
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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 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
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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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
USEC INC.
By: /s/ XXXXX X XXXXXXX, XX.
------------------------------
Xxxxx X Xxxxxxx, Xx.
Chief Financial Officer
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Address for notices:
USEC Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
Telecopier:(000) 000-0000
Telephone: (000) 000-0000
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Documentation
Agent and Administrative Agent
By: /s/ XXXXXX X. XXXXX
------------------------------
Xxxxxx X. Xxxxx
Vice President
Address for notices (other than Requests for
Loan, Requests for Letters of Credit and Bid
Requests):
Bank of America National Trust and Savings
Association
Agency Management - Los Angeles #20529
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
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Address for notices (Requests for Loans,
Requests for Letters of Credit and Bid
Requests):
Bank of America National Trust and Savings
Association
Agency Administrative Services #5596
0000 Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Lender
By: /s/ XXXXXX X. XXXXX
------------------------------
Xxxxxx X. Xxxxx
Vice President
Address for notices (other than Requests for
Loans, Requests for Letters of Credit and Bid
Requests):
Bank of America National Trust and Savings
Association
Credit Products #5618
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
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Address for notices (Domestic and Offshore
Lending Office):
Bank of America National Trust and Savings
Association
GPO-Domestic Account Administration #5693
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
FIRST UNION NATIONAL BANK, as a
Syndication Agent and as a Lender
By: /s/ XXXXXXXX X. XXXXXXXXX
-----------------------------------
Xxxxxxxx X. Xxxxxxxxx
Vice President
Address for notices:
First Union National Bank
0000 Xxxxx Xxxxxx Xxxx, 0xx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attn: Xxxxx XxXxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
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NATIONSBANK, N.A., as a Syndication Agent and
as a Lender
By: /s/ XXXXX X. XXXXX
--------------------------------
Xxxxx X. Xxxxx
Vice President
Address for notices:
NationsBank, N.A.
0000 Xxxxxxxxx Xxxxx, 0xx Xxxxx
MD2-600-06-13
Xxxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Address for notices (Requests for Loans,
Requests for Letters of Credit and Bid
Requests):
NationsBank, N.A.
Corporate Credit Services
000 X. Xxxxx Xx. XX0-000-00-00
Xxxxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
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