EXHIBIT 2.01
INVESTMENT AGREEMENT
THIS INVESTMENT AGREEMENT
(this
Agreement
) is made and entered into as of October 4, 2006,
by and among Toshiba Corporation, a corporation organized under the
laws of Japan (
Toshiba
),
Toshiba Nuclear Energy Holdings (US) Inc., a Delaware corporation (the
Company
), The Shaw Group
Inc., a Louisiana corporation (
Shaw
), and Nuclear Energy Holdings, L.L.C., a Delaware limited
liability company and a wholly owned Subsidiary (as defined below) of Shaw (the
Purchaser
). Each
of Toshiba, the Company and the Purchaser are a Party to this Agreement, and together the
Parties.
WHEREAS
, Toshiba, through TSB Nuclear Energy Investment US Inc., a Delaware corporation and
wholly owned Subsidiary of Toshiba (
Toshiba Sub
), currently owns all of the issued and
outstanding shares of capital stock of the Company; and
WHEREAS
, Toshiba has entered into that certain Purchase and Sale Agreement, dated as of
February 6, 2006 (the
PSA
), pursuant to which it has agreed to purchase all of the issued and
outstanding shares of BNFL USA Group Inc. and Westinghouse Electric UK Limited (together with their
Subsidiaries, collectively the
Westinghouse Group
); and
WHEREAS
, Toshiba plans to cause the Company to acquire all of the issued and outstanding
shares of BNFL USA Group Inc. and to cause Toshiba Nuclear Energy Holdings (UK) Limited, an English
corporation and initially an indirect wholly owned Subsidiary of Toshiba (
UK Acquisition Co.
), to
acquire all of the issued and outstanding shares of Westinghouse Electric UK Limited, respectively;
and
WHEREAS
, Toshiba has entered into an Agreement Regarding Participation in Investment Program
with Shaw (the
Shaw Participation Agreement
) and a similar agreement with another third-party
investor (the
Outside Investor
) (together with the Shaw Participation Agreement, the
"
Participation Agreements
) pursuant to which Shaw and the Outside Investor have agreed to
subscribe for equity interests in the Company; and
WHEREAS
, pursuant to the terms of the Participation Agreements, Toshiba, Shaw, and the Outside
Investor have agreed to, or to cause certain of their Subsidiaries to, enter into, (i) the
Shareholders Agreement (the
Shareholders Agreement
) governing the relationship of Toshiba,
Toshiba Sub, the Purchaser and the Outside Investor with respect to the Company, (ii) this
Agreement and a similar agreement with the Outside Investor, (iii) a put option agreement with the
Purchaser in substantially the form attached hereto as Exhibit C (the
Put Agreement
) and a
similar agreement with the Outside Investor, (iv) the Reimbursement Agreement between Toshiba and
Shaw (the
Reimbursement Agreement
) in substantially the form attached hereto as Exhibit D and (v)
a Commercial Relationship Agreement (the
Commercial Relationship Agreement
) affording a
preferential status to Shaw when the Westinghouse Group chooses a supplier;
WHEREAS
, on the terms and subject to the conditions contained herein, the Company desires to
sell to the Purchaser, and the Purchaser desires to purchase from the Company, capital
stock of the Company representing twenty percent (20%) of the total outstanding capital stock
of the Company (immediately after giving effect to the transactions contemplated by the
Participation Agreements) for an aggregate purchase price of $800,000,000; and
WHEREAS
, Toshiba has entered into an Investment Agreement (the
UK Investment Agreement
) with
UK Acquisition Co., Shaw and Purchaser, pursuant to which UK Acquisition Co. agrees to sell to
Purchaser, and Purchaser agrees to purchase from UK Acquisition Co., capital stock of UK
Acquisition Co. representing twenty percent (20%) of the total outstanding capital stock of UK
Acquisition Co. (immediately after giving effect to the transactions contemplated by the
Participation Agreements) for an aggregate purchase price of $280,000,000.
NOW, THEREFORE
, in consideration of the foregoing and the agreements and understandings set
forth herein, the Parties agree as follows:
1.
Definitions
1.1
Certain Definitions
. The following terms shall have the following meanings:
Action
means any litigation, action, suit, proceeding, investigation, arbitration, other
dispute or claim by, with or before any court or Governmental Authority.
Adjustment Amount
shall have the meaning given to that term in the PSA.
Affiliate
means, with respect to any Person, any other Person directly or indirectly
Controlling, Controlled by, or under common Control with, such Person. It is acknowledged that
after the date of this Agreement, Persons who are not presently Affiliates of a Party may become
Affiliates of such Party, and Persons who are presently Affiliates of a Party may cease to be
Affiliates of such Party.
Agreement
shall have the meaning given to that term in the preamble.
Closing
shall mean the closing of the purchase and sale of the Purchased Shares as
contemplated by this Agreement.
Closing Date
shall have the meaning given to that term in Section 3.1.
Commercial Relationship Agreement
shall have the meaning given to that term in the preamble.
Company
shall have the meaning given to that term in the preamble.
Control
of any Person (including the terms Controlling, Controlled by and under common
Control with) means the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such Person, whether through the ownership of voting
securities, by contract or otherwise.
Disputes
shall have the meaning given to that term in Section 10.9(a).
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Drop Dead Date
shall have the meaning given to that term in Section 9.3(b).
Earnest Money Fund
shall have the meaning given to that term in the PSA.
Governmental Authority
shall mean any nation or government, any state or other political
subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
ICC
shall have the meaning given to that term in Section 10.9(c).
ICC Court
shall have the meaning given to that term in Section 10.9(c).
Indemnification Agreement
shall have the meaning given to that term in Section 4.1(a).
Knowledge
with respect to any Person shall mean the actual knowledge of the Person,
including the actual knowledge of any of the executive officers, directors, managers, partners or
members of such Person.
Material Adverse Effect
means, with respect to a Person, a material adverse effect on the
condition (financial or otherwise), business, assets or results of operations (considered on a
consolidated basis) of such Person.
Organizational Documents
shall mean the Articles of Incorporation with respect to Toshiba;
the certificate of incorporation and by-laws, with respect to a corporation organized in the United
States; the partnership agreement, with respect to a general partnership; the certificate of
formation and operating or company agreement, with respect to a limited liability company; or
equivalent organizational documents, with respect to any other entity.
Outside Investor
shall have the meaning given to that term in the recitals.
Participation Agreements
shall have the meaning given to that term in the recitals.
Person
means an individual, corporation, partnership, limited liability company,
association, trust, Governmental Authority or other entity or organization.
PSA
shall have the meaning given to that term in the recitals.
PSA Closing
shall mean the closing of the transactions contemplated by the PSA.
Purchase Price
shall have the meaning given to that term in Section 2.1.
Purchased Shares
shall have the meaning given to that term in Section 2.1.
Purchaser
shall have the meaning given to that term in the preamble.
Put Agreement
shall have the meaning given to that term in the recitals .
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Request
shall have the meaning given to that term in Section 10.9(a).
Rules
shall have the meaning given to that term in Section 10.9(c).
Securities Act
shall have the meaning given to that term in Section 6.4.
Sellers
shall have the meaning given to that term in the PSA.
Shareholders Agreement
shall have the meaning given to that term in the recitals.
Shaw
shall have the meaning given to that term in the preamble.
Shaw Participation Agreement
shall have the meaning given to that term in the recitals.
Subsidiary
means, with respect to any Person, (i) any corporation of which the outstanding
stock having at least a majority of votes entitled to be cast in the election of directors under
ordinary circumstances shall at the time be owned, directly or indirectly, by such Person or by
such Person and a Subsidiary or Subsidiaries of such Person or by a Subsidiary or Subsidiaries of
such Person or (ii) any other Person (other than a corporation) of which at least a majority of
voting interests under ordinary circumstances shall at the time be owned or Controlled, directly or
indirectly, by such Person or by such Person and a Subsidiary or Subsidiaries of such Person or by
a Subsidiary or Subsidiaries of such Person.
Toshiba
shall have the meaning given to that term in the preamble.
Toshiba Sub
shall have the meaning given to that term in the preamble.
UK Acquisition Co.
shall have the meaning given to that term in the recitals .
UK Investment Agreement
shall have the meaning given to that term in the recitals.
Westinghouse Group
shall have the meaning given to that term in the recitals.
1.2
Construction of Certain Terms and Phrases
. Unless the context otherwise requires,
(a) words of any gender include each other gender; (b) the terms Party and Parties refer to a
party or the parties to this Agreement; (c) the terms hereof, herein, hereby and derivative
or similar words refer to this entire Agreement; (d) the terms Article or Section refer to the
specified Article or Section of this Agreement; and (e) the terms include or including also
include the phrases without limitation or but not limited to when the context is appropriate.
Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless
business days are specified. Whenever this Agreement refers to an Exhibit attached hereto, the
Exhibit shall be deemed to be incorporated by reference.
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2.
Purchase and Sale of Purchased Shares
2.1
Purchase and Sale of Purchased Shares
.
Upon the terms and subject to conditions of this Agreement, at the Closing the Company shall,
and Toshiba shall cause the Company to, issue and sell to the Purchaser, and the Purchaser shall,
and Shaw shall cause the Purchaser to, subscribe for and purchase from the Company, eight hundred
(800) newly issued shares of the Class A Stock, par value $0.01 per share, of the Company, such
shares representing 20% of the total equity interests of the Company on the Closing Date (the
Purchased Shares
), for an aggregate purchase price of eight hundred million dollars
($800,000,000) (the
Purchase Price
). The payment of the Purchase Price shall be in accordance
with Section 4.1(a). The Purchased Shares shall have the rights and preferences as set forth in
the Companys Certificate of Incorporation, which at Closing shall be in substantially the form
attached hereto as Exhibit E.
3.
The Closing
3.1
The Closing
. The Closing shall take place at the offices of Skadden, Arps, Slate,
Meagher & Flom LLP, legal counsel of Toshiba, located at Izumi Garden Tower, 21
st
Floor,
1-6-1 Roppongi, Minato-ku, Tokyo 106-6021on October 13, 2006, subject to extension as agreed by the
Purchaser and Toshiba, and subject to all of the conditions set forth in Section 8 having been
satisfied or waived (other than those conditions which can only be satisfied at the Closing). The
date of the Closing is referred to in this Agreement as the
Closing Date
.
4.
Deliveries at the Closing
4.1
Deliveries at the Closing
. At the Closing, subject to the conditions herein:
(a) The Purchaser shall, and Shaw shall cause the Purchaser to, deliver (i) cash payment of
the Purchase Price by wire transfer of immediately available funds to the account designated by
Toshiba in writing at least three business days prior to the Closing Date; (ii) a duly executed
counterpart original of each of the Shareholders Agreement, the Put Agreement (together with a
Reimbursement Agreement, to be dated on or about the date of the Put Agreement (the
Reimbursement
Agreement
), by and between Shaw and Toshiba) and the Commercial Relationship Agreement; (iii) the
certificate required to be delivered to Toshiba pursuant to Section 8.3(c) of this Agreement; and
(iv) such documents and instruments as Toshiba may reasonably request to evidence the satisfaction
of all conditions precedent set forth in Section 8 of this Agreement or which are required to be
delivered by the Purchaser at or prior to the Closing Date pursuant to this Agreement.
(b) Toshiba shall deliver to the Purchaser (i) the certificate required to be delivered to the
Purchaser pursuant to Section 8.2(c) of this Agreement; (ii) a duly executed counterpart original
of each of the Shareholders Agreement, the Put Agreement (together with the Reimbursement
Agreement) and the Commercial Relationship Agreement; and (iii) such documents and instruments as
the Purchaser may reasonably request (A) to evidence the satisfaction of all conditions precedent
set forth in Section 8 of this Agreement, (B) which are required to be delivered by Toshiba at or
prior to the Closing Date pursuant to this Agreement or (C) in connection with its financing
arrangements for the acquisition of the Purchased Shares.
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(c) The Company shall, and Toshiba shall cause the Company to, deliver to the Purchaser (i) a
certificate representing the Purchased Shares bearing the legend set forth in Section 6.5 , (ii) a
copy of the Companys register of Shareholders, updated to record the issuance of the Purchased
Shares to Purchaser and (iii) a duly executed counterpart original of each of the Shareholders
Agreement and the Commercial Relationship Agreement.
4.2
Further Assurances
. At the Closing, each Party shall deliver or cause to be
delivered, as appropriate, such further certificates, consents and other documents as may be
necessary to carry out the terms of this Agreement.
5.
Representations and Warranties of Toshiba
. Toshiba represents and warrants to the
Purchaser, as of the date hereof and, to the extent provided in Section 8.2(a), as of the Closing,
as follows:
5.1
Organization
. Toshiba is a corporation duly organized and validly existing under
the laws of Japan. Toshiba Sub is a corporation duly organized and validly existing under the laws
of the State of Delaware. The Company is a corporation duly organized and validly existing under
the laws of the State of Delaware.
5.2
Authority; Authorization
. Toshiba had, with respect to the PSA, full corporate
power and authority to execute and deliver the PSA when it was executed and delivered, and each of
Toshiba and the Company has full corporate power and authority to execute and deliver this
Agreement and the other agreements contemplated by the Shaw Participation Agreement and to perform
its obligations hereunder and thereunder. The PSA, this Agreement and the other agreements
contemplated by the Shaw Participation Agreement have been duly authorized by all requisite
corporate action by Toshiba.
5.3
No Consents Required
. There are no approvals, authorizations, consents, orders or
other actions of, or filings with, any Person that are required to be obtained or made by Toshiba,
Toshiba Sub or the Company in connection with the execution of, and the consummation of the
transactions contemplated under, the PSA, this Agreement or the other agreements contemplated by
the Shaw Participation Agreement, except for any such consents which have been obtained or will be
obtained prior to the Closing.
5.4
No Violations
. Neither the execution and delivery of this Agreement by Toshiba
and the Company nor the consummation by Toshiba and the Company of the transactions contemplated by
this Agreement will (a) conflict with or result in the breach of any provision of the Articles of
Incorporation of Toshiba or the certificate of incorporation or by-laws of Toshiba Sub or the
Company or their respective Subsidiaries, (b) result in a violation or breach of, or constitute a
default under, or require any indenture, license, contract, agreement or other instrument or
obligation to which Toshiba, Toshiba Sub or the Company is a party, including the agreement with
the Outside Investor that is similar to the Shaw Participation Agreement, or by which any of their
respective properties or assets may be bound, or (c) violate any order, writ, injunction, decree or
law applicable to Toshiba, Toshiba Sub, the Company or their respective Subsidiaries.
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5.5
Additional Company Matters
. Each of the Company and UK Acquisition Co. has been
recently formed by Toshiba for the ownership of the Westinghouse Group as provided in the
Participation Agreements and each has no other material operations, liabilities or obligations.
Toshiba beneficially owns all of the capital stock of the Company and UK Acquisition Co. free and
clear of all liens, security interests, claims, pledges and other encumbrances of any nature
whatsoever.
5.6
Capitalization
. The authorized capital stock of the Company consists of 8,800
shares of which the Company has the authority to issue 4,400 shares of Common Stock, each having a
par value of $0.01, and 2,156 shares of Class A Common Stock, each having a par value of $0.01, and
2,244 shares of Class B Common Stock, each having a par value of $0.01. All outstanding shares of
capital stock are validly issued, fully paid and nonassessable. Except for the agreement with the
Outside Investor that is similar to the Shaw Participation Agreement, there are not any
subscriptions, options, warrants, calls, rights, convertible securities or commitments of any
character obligating the Company to issue, transfer or sell any of its capital stock or other
equity interests.
5.7
PSA Matters
.
(a) Toshiba has made commercially reasonable efforts to conduct an appropriate due diligence
investigation of the Westinghouse Group and to reflect, to the extent practicable, the results of
such investigation in the terms of the PSA. Since the execution of the PSA, Toshiba has not become
aware of any information or circumstances regarding the Westinghouse Group that reasonably could
have a Material Adverse Effect on the Westinghouse Group.
(b) Toshiba has completed its payment of the Earnest Money Fund in accordance with the
provisions of the PSA.
(c) To the Knowledge of Toshiba, no representation of the Sellers contained in the PSA is
untrue in any material respect. Toshiba has not granted the Sellers any waivers or similar
releases of any of the terms or conditions of the PSA.
5.8
Arms Length Transactions
. Toshiba has not entered into any contract, agreement,
license or other legally binding arrangement with any member of the Westinghouse Group except for
such contracts, agreements, licenses and arrangements which, when entered into or last materially
modified or amended, were, when viewed in the aggregate, on arms length terms.
Notwithstanding anything contained in this Section 5 or any other provision of this Agreement,
it is the explicit intent of each Party that neither Toshiba nor the Company is making any
representation or warranty whatsoever, express or implied, except those representations and
warranties set forth in this Section 5, and in entering into this Agreement and acquiring the
Purchased Shares from the Company, the Purchaser expressly acknowledges and agrees that it is not
relying on any statement, representation or warranty, including, but not limited to, those which
may be contained in any materials regarding the Westinghouse Group or any of its
7
businesses provided to the Purchaser during the course of its due diligence investigation of
the Westinghouse Group, other than those representations and warranties set forth in this Section
5.
6.
Representations and Warranties of the Purchaser
. The Purchaser hereby represents and
warrants as of the date hereof and, to the extent provided in Section 8.3(a), as of the Closing, as
follows:
6.1
Organization
. The Purchaser is a limited liability company duly organized,
validly existing and in good standing under the laws of Delaware. Shaw has been duly incorporated
and is validly existing and in good standing under the laws of the State of Louisiana.
6.2
Authority; Authorization
. The Purchaser has full corporate power and authority to
execute and deliver this Agreement and the other agreements contemplated by the Shaw Participation
Agreement and perform its obligations hereunder and thereunder. This Agreement and the other
agreements contemplated by the Shaw Participation Agreement have been duly authorized by all
requisite corporation action of the Purchaser. Shaw has the corporate power and corporate
authority to execute and deliver the Indemnification Agreement and to consummate the transactions
contemplated thereby, and the Indemnification Agreement has been duly executed and delivered by
Shaw.
6.3
No Consents Required
. There are no approvals, authorizations, consents, orders or
other actions of, or filings with, any Person that are required to be obtained or made by the
Purchaser in connection with the execution of, and the consummation of the transactions
contemplated under, this Agreement or the other agreements contemplated by the Shaw Participation
Agreement, except for any such consents which have been obtained or will be obtained prior to the
Closing.
6.4
Investment Representations
.
(a) The Purchaser is acquiring the Purchased Shares for its own account, for investment only
and has no intention of selling or distributing any of such shares or any arrangement or
understanding with any other person or entity regarding the sale or distribution of such shares
except pursuant to a registration, or an exemption from registration, under the United States
Securities Act of 1933, as amended (the
Securities Act
).
(b) The Purchaser understands that the Purchased Shares have not been registered under the
Securities Act, by reason of their issuance in a transaction exempt from the registration
requirements of the Securities Act, and that they must be held indefinitely unless a subsequent
disposition thereof is registered under the Securities Act or is exempt from registration
thereunder.
(c) The Purchaser has requested, received, reviewed and considered all information it deems
relevant in making an informed decision to purchase the Purchased Shares in connection with the
transactions contemplated hereby. The Purchaser has had a reasonable time prior to the date hereof
to ask questions and receive answers concerning the terms and conditions of the offering of such
shares, and to obtain any additional information which Toshiba or the Company possesses or could
acquire without unreasonable effort or expense, and generally has such knowledge and experience in
business and financial matters and with respect
8
to investments in securities of privately held companies as to enable the Purchaser to
understand and evaluate the risks of such investment and form an investment decision with respect
thereto.
(d) The Purchaser is an accredited investor, as such term is defined in Rule 501 promulgated
under the Securities Act (the provisions of which are known to the Purchaser). The Purchaser is
knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with
respect to investments in shares representing an investment decision like that involved in the
transactions contemplated hereby, including the purchase of the Purchased Shares.
(e) The Purchaser recognizes that an investment in the Purchased Shares involves a high degree
of risk, including a risk of total loss of the Purchasers investment. The Purchaser is able to
bear the economic risk of holding the Purchased Shares for an indefinite period, and has knowledge
and experience in the financial and business matters such that it is capable of evaluating the
risks of the investment in such shares.
(f) The Purchaser understands that Toshiba and the Company may be relying on the statements
contained herein to establish an exemption from registration under federal, state and foreign
securities laws.
6.5
Shareholders Agreement; Legends
. The Purchaser understands and agrees that the
Purchased Shares shall in all regards be subject to the provisions of the Shareholders Agreement
and that each certificate or other document evidencing any of the Purchased Shares shall be
endorsed with the legend in the form set forth below, and the Purchaser covenants that it will not
transfer the shares represented by any such certificate without complying with the restrictions on
transfer contained in the Shareholders Agreement and described in the legend endorsed on such
certificate and understands that the Company will refuse to register a transfer of any such shares
unless the conditions specified in the Shareholders Agreement and in the following legend are
satisfied:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER APPLICABLE
SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD EXCEPT IN COMPLIANCE THEREWITH. SUCH
SHARES ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE
SHAREHOLDERS AGREEMENT DATED AS OF OCTOBER 4, 2006, AS THE SAME MAY BE AMENDED FROM
TIME TO TIME, COPIES OF WHICH MAY BE OBTAINED UPON REQUEST FROM THE ISSUER HEREOF.
6.6
No Prior Operations; No Material Adverse Effect
. The Purchaser or its permitted
assignee (i) is a wholly owned subsidiary of Shaw, (ii) has been formed by Shaw for the ownership
of the Purchased Shares and (iii) has no material operations, liabilities or obligations (except
for such indebtedness incurred in connection with the financing for the transactions contemplated
hereby) and since the date of its formation there has occurred no event or events reasonably likely
to have a Material Adverse Effect on the Purchaser. Since August 31, 2005, there has occurred no
event or events reasonably likely to have a Material Adverse Effect on Shaw.
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Notwithstanding anything contained in this Section 6 or any other provision of this Agreement,
it is the explicit intent of each Party that the Purchaser is not making any representation or
warranty whatsoever, express or implied, except those representations and warranties set forth in
this Section 6, and in entering into this Agreement and in issuing and selling the Purchased
Shares, the Company and Toshiba expressly acknowledge and agree that they are not relying on any
statement, representation or warranty other than those representations and warranties set forth in
this Section 6.
7.
Additional Covenants and Agreements
7.1
Assignment of PSA and Earnest Money Fund
.
(a) As promptly as practicable after the date hereof, and solely to the extent the following
has not previously completed, Toshiba shall assign, to the fullest extent permitted by the terms
thereof, all of its rights and obligations under the PSA to the Company and the UK Acquisition Co.
provided that, as between the Company and the UK Acquisition Co., the Company shall acquire all of
the issued and outstanding shares of BNFL USA Group Inc., a Delaware corporation, at the PSA
Closing. Notwithstanding the foregoing, the Parties acknowledge that Toshiba shall remain jointly
liable with the Company and the UK Acquisition Co. to the sellers of Westinghouse Group in
accordance with the provisions of the PSA.
(b) In connection with the assignment of its rights and obligations under the PSA, Toshiba,
through Toshiba Sub, shall also assign all of its right, title and interest in and to the Earnest
Money Fund to the Company. The Parties acknowledge and agree that in consideration for such
assignment, Toshiba will be deemed to have made capital contribution to the Company in an amount
equal to fifty-four million dollars ($54,000,000) and will receive fifty four (54) shares of Class
B Stock of the Company. In the event that as of the PSA Closing, the balance of the Earnest Money
Fund which is credited against the Base Purchase Price (as defined in the PSA) is greater than
fifty-four million dollars ($54,000,000), then the Parties shall cause the Company to refund an
amount equal to such excess to Toshiba by wire transfer of immediately available funds to an
account specified by Toshiba as promptly as practicable thereafter. In the event that as of the
PSA Closing, the balance of the Earnest Money Fund which is credited against the Base Purchase
Price (as defined in the PSA) is less than fifty-four million dollars ($54,000,000), then Toshiba
shall remain solely liable for such deficiency (irrespective of the assignment contemplated by this
Section 8.1(b)) and shall make such transfers of funds as may be necessary to pay such deficiency.
7.2
PSA Closing Date Adjustment
.
(a) Toshiba will take all actions reasonably necessary to effect the Closing Adjustment (as
defined in the PSA) on behalf of the Company and the UK Acquisition Co. Upon receipt of the
Adjustment Statement (as defined in the PSA) Toshiba shall promptly provide copies of the same to
the Purchaser and Outside Investors and shall use its commercially reasonable efforts to consult
with the Purchaser and Outside Investors regarding the same and strategy with respect to the
resolution of any issues presented thereby.
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(b) In the event that the Adjustment Amount is positive (e.g., additional funds are due to the
Sellers) the Parties agree that such surplus will be paid from cash held by the Westinghouse Group,
subject to applicable law, or from the proceeds of debt or equity offerings of the Company and the
UK Acquisition Co. or the Westinghouse Group or a combination of the foregoing.
(c) In the event that the Adjustment Amount is negative (e.g., a decrease in the purchase
price payable under the provisions of the PSA), as promptly as practicable after the final
determination of the Adjustment Amount pursuant to the provisions of the PSA, Shaw, the Purchaser
and Toshiba shall cause the Company and the UK Acquisition Co. to repurchase its shares from the
shareholders thereof at a purchase price per share agreed among the shareholders of the Company.
Such repurchases shall be allocated between the Company and UK Acquisition Co. as the Parties shall
agree, shall be pro rata from each shareholder based on the total number of shares of the Company
and the UK Acquisition Co. held by each shareholder and each of Toshiba, Shaw and the Purchaser
consents to such repurchases and agrees to participate in such repurchases such that the full
amount of such Adjustment Amount deficiency is used to repurchase shares of the Company and the UK
Acquisition Co.
7.3
Inspection of Records
. Between the date of this Agreement and the Closing, the
Company shall, and Toshiba shall cause the Company to, allow the officers, attorneys, accountants
and other duly authorized representatives of the Purchaser reasonable access during regular
business hours to the records and files, correspondence, audits and properties, as well as to all
information in each case relating to the business and affairs of the Company.
7.4
Further Efforts
. Between the date of this Agreement and the Closing, each of the
Parties will use its commercially reasonable efforts to cause the conditions to the obligations of
the Parties set forth in Section 8 of this Agreement to be satisfied.
8.
Conditions to the Closing
8.1
Mutual Conditions
. The respective obligations of the Parties to complete the
purchase and sale of the Purchased Shares and to take the other actions required to be taken by
each of the Parties at the Closing is subject to the satisfaction, at or prior to the Closing, of
each of the following conditions (any of which may be waived jointly by the Parties in writing, in
whole or in part):
(a)
Shareholders Agreement and Other Agreements
. The Parties, as applicable, together
with the Outside Investor, as applicable, shall have entered into the Shareholders Agreement. In
addition, Toshiba, Shaw, the Company and the Purchaser, as the case may be, shall have entered into
the Put Agreement and the Commercial Relationship Agreement.
(b)
No Prohibitions
. There shall not be any Action taken by any Governmental
Authority which prohibits consummation of the transactions contemplated hereby.
(c)
PSA
. The PSA shall be in full force and effect and shall have not been terminated
by any Party thereto, the representations and warranties of the Sellers in the PSA
11
shall be true and correct in all material respects, all of the conditions to the closing of
the transactions contemplated by the PSA (other than such conditions which may only be satisfied as
of the PSA Closing) shall have been satisfied without waiver thereof by Toshiba and there shall
have occurred no event or events reasonably likely to have a Material Adverse Effect on the
Westinghouse Group.
(d)
UK Closing
. The transactions contemplated by the UK Investment Agreement shall
have been consummated concurrently with the Closing.
8.2
Conditions of the Purchaser
. The obligation of the Purchaser to complete the
purchase of the Purchased Shares, and to take the other actions required to be taken by the
Purchaser at the Closing is subject to the satisfaction, at or prior to the Closing, of each of the
following conditions (any of which may be waived by the Purchaser in writing, in whole or in part):
(a)
Representations and Warranties
. The representations and warranties of Toshiba
contained in this Agreement, shall be true and correct in all material respects on the Closing with
the same force and effect as though made on and as of the Closing.
(b)
Performance
. Toshiba and the Company each shall have in all material respects
performed all obligations and complied with all covenants required by this Agreement to be
performed or complied with by Toshiba and the Company on or prior to the Closing Date.
(c)
Certificate
. Toshiba shall have delivered to the Purchaser a certificate, dated
the Closing Date, certifying that the conditions specified in Sections 8.2(a) and (b) of this
Agreement have been satisfied.
(d)
Consents
. The Purchaser shall have obtained all consents and approvals of Persons
necessary for the unconditional consummation by it of the transactions contemplated hereby.
(e)
Opinion Letter
. The Purchaser shall have received from Skadden, Arps, Slate,
Meagher & Flom LLP, counsel to Toshiba, a written opinion, dated as of the Closing Date and
addressed to the Purchaser, substantially addressing the matters set forth in Exhibit A hereto, and
a reliance letter specifically permitting the initial purchasers of the Bonds (as defined in
Section 10.12) to rely on such opinions to the extent of (i) Section 1 of Exhibit A and (ii)
Sections 2,3 and 4 of Exhibit A as they pertain to the Put Agreement.
(f)
Debt Financing
. The Purchaser shall have received non-recourse debt financing in
the amount of $870 million plus prefunded interest costs calculated at an annual rate of no greater
than 3% on terms reasonably satisfactory to the Purchaser.
(g)
No MAE
. There shall have occurred no event or events reasonably likely to have a
Material Adverse Effect on Toshiba.
8.3
Conditions of Toshiba and the Company
. The obligation of Toshiba and the Company
to complete the sale of the Purchased Shares and to take the other actions required
12
to be taken by them at the Closing is subject to the satisfaction, at or prior to the Closing,
of each of the following conditions (any of which may be waived by Toshiba in writing, in whole or
in part):
(a)
Representations and Warranties
. The representations and warranties of the
Purchaser contained in this Agreement shall be true and correct in all material respects on the
Closing with the same force and effect as though made on and as of the Closing.
(b)
Performance
. The Purchaser shall have in all material respects performed all
obligations and complied with all covenants required by this Agreement to be performed or complied
with by the Purchaser on or prior to the Closing Date.
(c)
Certificate
. The Purchaser shall have delivered to Toshiba a certificate, dated
the Closing Date, certifying that the conditions specified in Sections 8.3(a) and (b) of this
Agreement have been satisfied.
(d)
Consents
. Toshiba shall have obtained all consents and approvals of Persons
necessary for the unconditional consummation of the transactions contemplated hereby.
(e)
Opinion Letter
. Toshiba and the Company shall have received from Vinson & Elkins
LLP, counsel to Shaw, a written opinion, dated as of the Closing Date and addressed to Toshiba and
the Company, substantially addressing the matters set forth in Exhibit B hereto.
(f)
No MAE
. There shall have occurred no event or events reasonably likely to have a
Material Adverse Effect on the Purchaser or Shaw.
9.
Termination
9.1
Termination by Mutual Consent
. This Agreement may be terminated at any time prior
to the Closing by the mutual agreement, in writing, of each of the Parties.
9.2
Termination by the Purchaser
. The Purchaser may (but shall not be obligated to)
terminate this Agreement prior to the Closing by giving written notice to Toshiba if:
(a) there has been a material violation or breach by Toshiba or the Company of any of their
respective agreements or covenants contained in this Agreement or there has been a material
violation or breach by Toshiba of any of its representations or warranties contained in this
Agreement such that the condition set forth in Section 8.2(a) cannot be satisfied, which violation
or breach shall not have been cured or corrected, if curable or correctable, within twenty days
after receipt of notice thereof; or
(b) the Closing does not occur on or prior to October 20, 2006 (the
Drop Dead Date
), or
such later date as may be agreed to in writing by the Parties; provided that the non-occurrence is
not due to a breach by the Purchaser of any condition or covenant hereunder.
13
9.3
Termination by Toshiba and the Company
. Toshiba and the Company may (but shall
not be obligated to) terminate this Agreement prior to the Closing by giving written notice to the
Purchaser if:
(a) there has been a material violation or breach by the Purchaser of any of its agreements or
covenants contained in this Agreement or there has been a material violation or breach by the
Purchaser of any of its representations or warranties contained in this Agreement such that the
condition set forth in Section 8.3(a) cannot be satisfied, which violation or breach shall not have
been cured or corrected, if curable or correctable, within twenty days after receipt of notice
thereof; or
(b) the Closing does not occur on or prior to the Drop Dead Date, or such later date as may be
agreed to in writing by the Parties; provided that the non-occurrence is not due to a breach by
Toshiba or the Company of any condition or covenant hereunder.
9.4
Effect of Termination
. In the event of such termination, no Party shall have any
obligation or liability to any other in respect to this Agreement, except for any willful breach of
contract occurring prior to such termination.
10.
Miscellaneous
10.1
Notices
. Any notices and other communications required to be given pursuant to
this Agreement shall be in writing in English and shall be effective upon delivery by hand or upon
receipt if sent by mail (registered or certified mail, postage prepaid) or upon transmission if
sent by facsimile (with request for confirmation of receipt in a manner customary for
communications of such respective type), except that if notice is received after 5:00 p.m., local
time, on a business day at the place of receipt, it shall be effective as of the following business
day. Notices are to be addressed as follows:
If to Toshiba or the Company, to:
Toshiba Corporation
Toshiba Building 31B
1-11, Shibaura, Minato-ku, Tokyo 105-8001, Japan
Attention: General Manager, Legal Affairs Department, Power Systems Company
Facsimile No.: + 81-3-5444-9183
Email: ushio.kawaguchi@toshiba.co.jp
with a copy, which shall not constitute notice, to:
Skadden, Arps, Slate, Meagher & Flom LLP
Izumi Garden Tower 21st Floor
1-6-1 Roppongi Minato-ku, Tokyo, 106-6021, Japan
Attention: Mitsuhiro Kamiya, Partner
Facsimile No.: + 81-3-3568-2626
Email: mkamiya@skadden.com
14
If to Shaw or the Purchaser, to:
The Shaw Group, Inc.
4171 Essen Lane
Baton Rouge, Louisiana 70809
Attention: Gary Graphia, Secretary and General Counsel
Facsimile No.: + 1-225-925-9146
Email: gary.graphia@shawgrp.com
with a copy, which shall not constitute notice, to:
Vinson & Elkins LLP
1001 Fannin Street, Suite 2300
Houston, TX 77002
Attention: David Stone, Partner
Facsimile No.: + 1-713-615-5141
Email: dstone@velaw.com
or to such other respective addresses as any Party shall designate to the others by notice in
writing,
provided
that notice of a change of address shall be effective only upon receipt.
10.2
Entire Agreement
. This Agreement contains the entire agreement among the Parties
with respect to the subject matter of this Agreement and supersedes all prior agreements and
understandings, both oral and written, between the Parties with respect to such subject matter,
including the Shaw Participation Agreement. No representation, inducement, promise, understanding,
condition or warranty not set forth in this Agreement has been made or relied upon by any Party.
10.3
Assignment
. No Party may assign its rights or obligations under this Agreement,
and any attempted or purported assignment or any delegation of any Partys rights or obligations
arising under this Agreement to any third party or entity shall be deemed to be null and void, and
shall constitute a material breach by such Party of its duties and obligations under this
Agreement; provided, however, that Purchaser may assign its rights hereunder (a) to any other
wholly owned subsidiary of Shaw which satisfies the requirements of Section 6.6 and (b), after the
Closing, to its finance parties by way of security for the financing arrangements for its
acquisition of the Purchased Shares.
10.4
Waiver and Amendment
.
(a) No provision of this Agreement may be waived unless in writing signed by the Party against
whom the waiver is to be effective, and waiver of any one provision of this Agreement shall not be
deemed to be a waiver of any other provision. This Agreement may be amended only by a written
agreement executed by all of the Parties.
(b) No failure or delay by any Party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
15
privilege. The rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.
10.5
Governing Law
. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York, without giving effect to the principles of conflicts of
law thereof and except where the laws of the State of Delaware shall apply to the establishment and
organizational matters of the Company.
10.6
Severability
. If it shall be determined by an arbitration tribunal or a court of
competent jurisdiction that any provision or wording of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate the entire Agreement, in
which case this Agreement shall be construed so as to limit any term or provision so as to make it
enforceable or valid within the requirements of New York law, and, in the event such term or
provision cannot be so limited, this Agreement shall be construed to omit such invalid or
unenforceable provisions.
10.7
Headings
. The section headings contained in this Agreement are for reference
only and are not intended to describe, interpret, define or limit the scope or intent of this
Agreement or any provision hereof.
10.8
Counterparts
. This Agreement may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument.
10.9
Arbitration
.
(a) All disputes, controversies or claims (
Disputes
) arising out of or relating to this
Agreement shall first be settled as far as possible by negotiations between the Parties to the
Dispute, in the form of meetings between senior-management level representatives of the Parties
from their respective nuclear energy businesses, upon the written request (a
Request
) by any such
Party to the other such Parties.
(b) If the Parties to the Dispute are unable to resolve a Dispute within two (2) weeks after
receipt of a Party of a Request, then such Dispute shall be settled as far as possible by
negotiations between the Parties to the Dispute, in the form of meetings of representative officers
(senior vice president or equivalent or above) of such Parties from their respective nuclear energy
business.
(c) If the Parties to the Dispute are unable to resolve a Dispute within four (4) weeks after
receipt by any Party of a Request, then any Party may submit the Dispute to arbitration to be
finally and exclusively resolved under the Arbitration Rules of the International Chamber of
Commerce (
ICC
) then in effect (the
Rules
), except as modified herein. Except as otherwise
agreed by the Parties to any such arbitration, any such arbitration shall be conducted by a number
of arbitrators equal to the number of Parties to the Dispute (for purposes of this Section 10.9,
Toshiba and the Company shall be counted as one party and Shaw and Purchaser shall be counted as
one Party) plus one (1) and each of the Parties to the Dispute shall each select one arbitrator in
accordance with the Rules. The arbitrators so nominated, once confirmed by the International Court
of Arbitration of the ICC (
ICC Court
), shall nominate an additional
16
arbitrator to serve as chairman, such nomination to be made within 30 days of the confirmation
by the ICC Court of the last arbitrator (other than the chairman). If the initial arbitrators
shall fail to nominate an additional arbitrator within said 30-day period, such additional
arbitrator shall be appointed by the ICC Court. The arbitrators shall be required to submit a
written statement of their findings and conclusions. Except as otherwise agreed by the Parties to
such Dispute, exclusive venue of arbitration shall be New York, New York and the language of the
arbitration shall be English and each of the Parties hereby submits to the non-exclusive
jurisdiction of the state and federal courts located in New York, New York for such purpose and for
the enforcement of any arbitral award. By agreeing to arbitration, the Parties do not intend to
deprive any court of its jurisdiction to issue any pre-arbitral injunction, pre-arbitral attachment
or other order in aid of arbitration proceedings.
(d) None of the Parties or the Arbitrators shall select any Arbitrator for the arbitral
tribunal who has any interest in the Dispute or who has, or within the immediately preceding five
years has had, any economic or other relationship with any Party to the Dispute.
(e) The award of the Arbitrators shall be final and binding upon the Parties, and shall be the
sole and exclusive remedy between and among the Parties regarding any claims, counterclaims,
issues, or accounting presented to the arbitral tribunal. Judgment upon any award may be entered
in any court having jurisdiction thereof.
10.10
Expenses
. Except as otherwise specifically provided herein, all costs and
expenses incurred by a Party in connection with the execution and delivery of this Agreement shall
be paid by the Party incurring such costs or expenses.
10.11
No Third Party Beneficiaries
. This Agreement is for the benefit of the Parties
and is not intended to confer upon any other Person any rights or remedies hereunder.
10.12
Limited Recourse to Shaw Sub
.
(a) Notwithstanding any other provision of this Agreement, the obligations of the Purchaser
hereunder are limited recourse obligations of the Purchaser, payable solely from its own assets and
only to the extent of funds available after repayment in full of the Bonds and all other Secured
Obligations. No recourse shall be had to any of the members, shareholders, subscribers, directors,
officers, partners, employees or agents of the Purchaser or any of their respective successors and
assigns in respect to the obligations of the Purchaser hereunder or arising in connection herewith.
(b) Each Party agrees not to institute against, or join any other Person in instituting
against, the Purchaser any bankruptcy, reorganization, arrangement, insolvency, moratorium or
liquidation proceedings or other proceedings under U.S. federal or state bankruptcy or similar laws
until at least one year and one day or, if longer, the applicable preference period then in effect
plus one day, after the repayment in full of the Bonds and all other Secured Obligations.
For the purposes of this Section 10.12 and Section 10.13:
17
Bonds means the bonds issued by the Purchaser on or about the date hereof. Immediately after the
issuance of the Bonds, Shaw shall notify to Toshiba and the Company the amount and interest rate of
the Bonds, provided that Shaw shall be responsible for making the foreign exchange conversion to
yen value transparent to Toshiba and the Company.
Secured Obligations means all amounts owed by the Purchaser to the secured parties under and in
connection with the Bonds.
10.13
Failure to Close
(a) Toshiba shall promptly notify the Purchaser in writing of the date of the consummation of
the PSA Closing.
(b) In the event that the PSA Closing is not consummated by October 20, 2006 for any reason,
Toshiba shall, or shall cause the Company to, pay to the Purchaser in redemption or repurchase of,
and against return of the stock certificate for, the Purchased Shares all portions of the Purchase
Price (which Purchase Price shall be paid in Japanese Yen based upon the Yen value of the Bonds
notified in accordance with Section 10.12(b)), which have been paid to the Company by the Purchaser
plus an amount in Japanese Yen equal to the actual accrued interest on the Bonds.
18
IN WITNESS WHEREOF, the Parties have executed this Investment Agreement as of the date first
above written.
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TOSHIBA CORPORATION
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By:
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Name:
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Masao Niwano
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Title:
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Director, Corporate Executive
Vice President
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TOSHIBA NUCLEAR ENERGY HOLDINGS (US) INC.
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By:
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Name:
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Shigenori Shiga
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Title:
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President
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NUCLEAR ENERGY HOLDINGS, L.L.C.
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By:
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Name:
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Gary P. Graphia
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Title:
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Vice President and Secretary
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THE SHAW GROUP INC.
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By:
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Name:
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J.M. Bernhard, Jr.
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Title:
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Chairman of the Board and
Chief Executive Officer
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EXHIBIT A
MATTERS TO BE ADDRESSED IN OPINION OF COUNSEL TO TOSHIBA
In accordance with the provisions of Section 8.2(e) of the Agreement, Skadden, Arps, Slate,
Meagher & Flom LLP, counsel to Toshiba, shall furnish to the Purchaser at the Closing a legal
opinion with respect to the matters set forth below, subject to customary assumptions and
exceptions. Unless otherwise defined herein, capitalized terms used herein shall have the meanings
given to them in the Agreement.
1. Toshiba has been duly incorporated and is validly existing under the laws of Japan. The
Company has been duly incorporated and is validly existing and in good standing under the laws of
the State of Delaware. Toshiba Sub has been duly incorporated and is validly existing and in good
standing under the laws of the State of Delaware.
2. Each of Toshiba and the Company has the corporate power and corporate authority to execute
and deliver each of this Agreement, the Shareholders Agreement, the Put Agreement and the
Commercial Relationship Agreement to which it is a party and to consummate the transactions
contemplated thereby, and this Agreement, the Shareholders Agreement and the Put Agreement have
been duly executed and delivered by Toshiba and the Company, respectively, to the extent it is a
party.
3. Each of this Agreement, the Shareholders Agreement and the Put Agreement is a valid and
binding agreement of Toshiba and the Company, to the extent it is a party, enforceable against
Toshiba and the Company in accordance with their respective terms.
4. The execution and delivery of each of this Agreement, the Shareholders Agreement, the Put
Agreement and the Commercial Relationship Agreement by Toshiba and the Company, to the extent it is
a party, and the consummation by Toshiba and the Company of the transactions contemplated thereby,
including the issuance and sale of the Purchased Shares, do not conflict with Toshibas and the
Companys Organizational Documents, as the case may be.
5. The authorized capital stock of the Company consists of 8,800 shares of which the Company
has the authority to issue 4,400 shares of Common Stock, each having a par value of $0.01,
comprised of 2,156 shares of Class A Common Stock, each having a par value of $0.01, and 2,244
shares of Class B Common Stock, each having a par value of $0.01. All outstanding shares of capital
stock are validly issued, fully paid and nonassessable.
Exhibit A
EXHIBIT B
MATTERS TO BE ADDRESSED IN OPINION OF COUNSEL
TO THE PURCHASER
In accordance with the provisions of Section 8.3(f) of the Agreement, Vinson & Elkins LLP,
counsel to the Purchaser, shall furnish to the Purchaser at the Closing a legal opinion with
respect to the matters set forth below, subject to customary assumptions and exceptions. Unless
otherwise defined herein, capitalized terms used herein shall have the meanings given to them in
the Agreement.
1. The Purchaser has been duly organized and is validly existing and in good standing under
the laws of the State of Delaware. Shaw has been duly incorporated and is validly existing and in
good standing under the laws of the State of Louisiana.
2. The Purchaser has the limited liability company power and authority to execute and deliver
each of this Agreement and the Shareholders Agreement and to consummate the transactions
contemplated thereby, and this Agreement and the Shareholders Agreement have been duly executed and
delivered by the Purchaser. Shaw has the corporate power and corporate authority to execute and
deliver each of this Agreement and the Reimbursement Agreement and to consummate the transactions
contemplated thereby, and this Agreement and the Reimbursement Agreement have been duly executed
and delivered by Shaw.
3. Each of this Agreement and the Shareholders Agreement is a valid and binding agreement of
the Purchaser, enforceable against the Purchaser in accordance with their respective terms. Each
of this Agreement and the Reimbursement Agreement is a valid and binding agreement of Shaw,
enforceable against Shaw in accordance with their respective terms.
4. The execution and delivery of each of this Agreement and the Shareholders Agreement by the
Purchaser and the consummation by the Purchaser of the transactions contemplated thereby do not
conflict with the Purchasers Organizational Documents. The execution and delivery of each of this
Agreement and the Reimbursement Agreement by Shaw and the consummation by Shaw of the transactions
contemplated thereby do not conflict with Shaws Organizational Documents.
Exhibit B
EXHIBIT 2.02
INVESTMENT AGREEMENT
THIS INVESTMENT AGREEMENT
(this
Agreement
) is made and entered into as of October 4, 2006,
by and among Toshiba Corporation, a corporation organized under the laws of Japan (
Toshiba
),
Toshiba Nuclear Energy Holdings (UK) Limited, a company registered in England with registered
number 5929672 (the
Company
), The Shaw Group Inc., a Louisiana corporation (
Shaw
), and Nuclear
Energy Holdings, L.L.C., a Delaware limited liability company and wholly owned Subsidiary (as
defined below) of Shaw (the
Purchaser
). Each of Toshiba, the Company and the Purchaser are a
Party to this Agreement, and together the Parties.
WHEREAS
, Toshiba, through TSB Nuclear Energy Investment UK Limited, a company registered in
England with registered number 5929658 and wholly owned Subsidiary of Toshiba (
Toshiba Sub
),
currently owns all of the issued shares in the capital of the Company; and
WHEREAS
, Toshiba has entered into that certain Purchase and Sale Agreement, dated as of
February 6, 2006 (the
PSA
), pursuant to which it has agreed to purchase all of the issued and
outstanding shares of BNFL USA Group Inc. and Westinghouse Electric UK Limited (together with their
Subsidiaries, collectively the
Westinghouse Group
); and
WHEREAS
, Toshiba plans to cause Toshiba Nuclear Energy Holdings (US) Inc., a Delaware
corporation (
US Acquisition Co.
), to acquire all of the issued and outstanding shares of BNFL USA
Group Inc. and to cause the Company to acquire all of the issued and outstanding shares of
Westinghouse Electric UK Limited, respectively; and
WHEREAS
, Toshiba has entered into an Agreement Regarding Participation in Investment Program
with Shaw (the
Shaw Participation Agreement
) and a similar agreement with another third-party
investor (the
Outside Investor
) (together with the Shaw Participation Agreement, the
Participation Agreements
) pursuant to which Shaw and the Outside Investor have agreed to
subscribe for shares in the Company; and
WHEREAS
, pursuant to the terms of the Participation Agreements, Toshiba, Shaw, and the Outside
Investor have agreed to, or to cause certain of their Subsidiaries to, enter into, (i) the
Shareholders Agreement (the
Shareholders Agreement
) governing the relationship of Toshiba,
Toshiba Sub, the Purchaser and the Outside Investor with respect to the Company, (ii) this
Agreement and a similar agreement with the Outside Investor, (iii) a put option agreement with the
Purchaser (the
Put Agreement
) in substantially the form attached hereto as Exhibit C and a
similar agreement with the Outside Investor (iv) the Reimbursement Agreement between Toshiba and
Shaw (the
Reimbursement Agreement
) in substantially the form attached hereto as Exhibit D and (v)
a Commercial Relationship Agreement (the
Commercial Relationship Agreement
) affording a
preferential status to Shaw when the Westinghouse Group chooses a supplier; and
WHEREAS
, Toshiba has entered into an Investment Agreement (the
US Investment Agreement
) with
US Acquisition Co., Shaw and Purchaser pursuant to which US Acquisition Co. agrees to sell to
Purchaser, and Purchaser agrees to purchase from US Acquisition Co., capital stock of US
Acquisition Co. representing twenty percent (20%) of the total outstanding capital stock of US
Acquisition Co. (immediately after giving effect to the transactions contemplated by the
Participation Agreements) for an aggregate purchase price of $800,000,000; and
WHEREAS
, on the terms and subject to the conditions contained herein, the Company desires to
issue and allot to the Purchaser, and the Purchaser desires to subscribe shares in the Company
representing twenty percent (20%) of the total issued share capital of the Company (immediately
after giving effect to the transactions contemplated by the Participation Agreements) for an
aggregate subscription price of $280,000,000.
NOW, THEREFORE
, in consideration of the foregoing and the agreements and understandings set
forth herein, the Parties agree as follows:
1.
Definitions
1.1
Certain Definitions
.
The following terms shall have the following
meanings:
Action
means any litigation, action, suit, proceeding, investigation, arbitration, other
dispute or claim by, with or before any court or Governmental Authority.
Adjustment Amount
shall have the meaning given to that term in the PSA.
Affiliate
means, with respect to any Person, any other Person directly or indirectly
Controlling, Controlled by, or under common Control with, such Person. It is acknowledged that
after the date of this Agreement, Persons who are not presently Affiliates of a Party may become
Affiliates of such Party, and Persons who are presently Affiliates of a Party may cease to be
Affiliates of such Party.
Agreement
shall have the meaning given to that term in the preamble.
Closing
shall mean the closing of the issue and allotment of the Purchased Shares as
contemplated by this Agreement.
Closing Date
shall have the meaning given to that term in Section 3.1.
Commercial Relationship Agreement
shall have the meaning given to that term in the preamble.
Company
shall have the meaning given to that term in the preamble.
2
Control
of any Person (including the terms Controlling, Controlled by and under common
Control with) means the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such Person, whether through the ownership of voting
securities, by contract or otherwise.
Disputes
shall have the meaning given to that term in Section 10.9(a).
Drop Dead Date
shall have the meaning given to that term in Section 9.3(b).
Earnest Money Fund
shall have the meaning given to that term in the PSA.
Governmental Authority
shall mean any nation or government, any state or other political
subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
ICC
shall have the meaning given to that term in Section 10.9(c).
ICC Court
shall have the meaning given to that term in Section 10.9(c).
Indemnification Agreement
shall have the meaning given to that term in Section 4.1(a).
Knowledge
with respect to any Person shall mean the actual knowledge of the Person,
including the actual knowledge of any of the executive officers, directors, managers, partners or
members of such Person.
Material Adverse Effect
means, with respect to a Person, a material adverse effect on the
condition (financial or otherwise), business, assets or results of operations (considered on a
consolidated basis) of such Person.
Organizational Documents
shall mean the memorandum of association and articles of
association, with respect to a company registered in England; the Articles of Incorporation with
respect to Toshiba; the certificate of incorporation and by-laws, with respect to a corporation
organized in the United States; the partnership agreement, with respect to a general partnership;
the certificate of formation and operating or company agreement, with respect to a limited
liability company; or equivalent organizational documents, with respect to any other entity.
Outside Investor
shall have the meaning given to that term in the recitals.
Participation Agreements
shall have the meaning given to that term in the recitals.
3
Person
means an individual, corporation, partnership, limited liability company,
association, trust, Governmental Authority or other entity or organization.
PSA
shall have the meaning given to that term in the recitals.
PSA Closing
shall mean the closing of the transactions contemplated by the PSA.
Purchase Price
shall have the meaning given to that term in Section 2.1.
Purchased Shares
shall have the meaning given to that term in Section 2.1.
Purchaser
shall have the meaning given to that term in the preamble.
Put Agreement
shall have the meaning given to that term in the recitals.
Request
shall have the meaning given to that term in Section 10.9(a).
Rules
shall have the meaning given to that term in Section 10.9(c).
Securities Act
shall have the meaning given to that term in Section 6.4.
Sellers
shall have the meaning given to that term in the PSA.
Shareholders Agreement
shall have the meaning given to that term in the recitals.
Shaw
shall have the meaning given to that term in the preamble.
Shaw Participation Agreement
shall have the meaning given to that term in the recitals.
Subsidiary
means, with respect to any Person, (i) any corporation of which the outstanding
stock having at least a majority of votes entitled to be cast in the election of directors under
ordinary circumstances shall at the time be owned, directly or indirectly, by such Person or by
such Person and a Subsidiary or Subsidiaries of such Person or by a Subsidiary or Subsidiaries of
such Person or (ii) any other Person (other than a corporation) of which at least a majority of
voting interests under ordinary circumstances shall at the time be owned or Controlled, directly or
indirectly, by such Person or by such Person and a Subsidiary or Subsidiaries of such Person or by
a Subsidiary or Subsidiaries of such Person.
Toshiba
shall have the meaning given to that term in the preamble.
4
Toshiba Sub
shall have the meaning given to that term in the preamble.
US Acquisition Co.
shall have the meaning given to that term in the recitals.
US Investment Agreement
shall have the meaning given to that term in the recitals.
Westinghouse Group
shall have the meaning given to that term in the recitals.
1.2
Construction of Certain Terms and Phrases
. Unless the context otherwise requires,
(a) words of any gender include each other gender; (b) the terms Party and Parties refer to a
party or the parties to this Agreement; (c) the terms hereof, herein, hereby and derivative
or similar words refer to this entire Agreement; (d) the terms Article or Section refer to the
specified Article or Section of this Agreement; and (e) the terms include or including also
include the phrases without limitation or but not limited to when the context is appropriate.
Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless
business days are specified. Whenever this Agreement refers to an Exhibit attached hereto, the
Exhibit shall be deemed to be incorporated by reference.
2.
Subscription and Issue of Purchased Shares
2.1
Subscription and Issue of Purchased Shares
. Upon the terms and subject to
conditions of this Agreement, at the Closing the Company shall, and Toshiba shall cause the Company
to, issue and allot to the Purchaser, and the Purchaser shall, and Shaw shall cause the Purchaser
to, subscribe for two hundred eighty (280) newly issued Ordinary A shares of £1.00 each, in the
capital of the Company, such shares representing 20% of the total equity interests of the Company
on the Closing Date (the
Purchased Shares
), for an aggregate purchase price of two hundred eighty
million dollars ($280,000,000) (the
Purchase Price
). The payment of the Purchase Price shall be
in accordance with Section 4.1(a). The Purchased Shares shall have the rights and preferences as
set forth in the Companys Articles of Association, which at Closing shall be in substantially the
form attached hereto as Exhibit E.
3.
The Closing
3.1
The Closing
. The Closing shall take place at the offices of Skadden, Arps, Slate,
Meagher & Flom LLP, legal counsel of Toshiba, located at Izumi Garden Tower 21
st
Floor, 1-6-1 Roppongi, Minato-ku, Tokyo 106-6021 on October 13, 2006, subject to extension as
agreed by the Purchaser and Toshiba, and subject to all of the conditions set forth in Section 8
having been satisfied or waived (other than those conditions which can only be satisfied at the
Closing). The date of the Closing is referred to in this Agreement as the
Closing Date
.
5
4.
Deliveries at the Closing
4.1
Deliveries at the Closing
. At the Closing, subject to the conditions herein:
(a) The Purchaser shall, and Shaw shall cause the Purchaser to, deliver (i) cash payment of
the Purchase Price by wire transfer of immediately available funds to the account designated by
Toshiba in writing at least three business days prior to the Closing Date; (ii) a duly executed
counterpart original of each of the Shareholders Agreement, the Put Agreement (together with a
Reimbursement Agreement, to be dated on or about the date of the Put Agreement (the
Reimbursement
Agreement
), by and between Shaw and Toshiba) and the Commercial Relationship Agreement; (iii) the
certificate required to be delivered to Toshiba pursuant to Section 8.3(c) of this Agreement; and
(iv) such documents and instruments as Toshiba may reasonably request to evidence the satisfaction
of all conditions precedent set forth in Section 8 of this Agreement or which are required to be
delivered by the Purchaser at or prior to the Closing Date pursuant to this Agreement.
(b) Toshiba shall deliver to the Purchaser (i) the certificate required to be delivered to the
Purchaser pursuant to Section 8.2(c) of this Agreement; (ii) a duly executed counterpart original
of each of the Shareholders Agreement, the Put Agreement (together with the Reimbursement
Agreement) and the Commercial Relationship Agreement; and (iii) such documents and instruments as
the Purchaser may reasonably request (A) to evidence the satisfaction of all conditions precedent
set forth in Section 8 of this Agreement, (B) which are required to be delivered by Toshiba at or
prior to the Closing Date pursuant to this Agreement or (C) in connection with its financing
arrangements for the acquisition of the Purchased Shares.
(c) The Company shall, and Toshiba shall cause the Company to, deliver to the Purchaser (i) a
certificate representing the Purchased Shares bearing the legend set forth in Section 6.5, (ii) a
certified copy of the Companys register of members showing the Purchaser as the holder of the
Purchased Shares and (iii) a duly executed counterpart original of each of the Shareholders
Agreement and the Commercial Relationship Agreement.
4.2
Further Assurances
.
At the Closing, each Party shall deliver or cause to
be delivered, as appropriate, such further certificates, consents and other documents as may be
necessary to carry out the terms of this Agreement.
5.
Representations and Warranties of Toshiba
Toshiba represents and warrants to the Purchaser, as of the date hereof and, to the extent
provided in Section 8.2(a), as of the Closing, as follows:
5.1
Organization
. Toshiba is a corporation duly organized and validly existing under
the laws of Japan. Toshiba Sub is incorporated and duly
6
registered under the laws of England. The
Company is incorporated and duly registered under the laws of England.
5.2
Authority; Authorization
. Toshiba had, with respect to the PSA, full corporate
power and authority to execute and deliver the PSA when it was executed and delivered, and each of
Toshiba and the Company has full corporate power and authority to execute and deliver this
Agreement and the other agreements contemplated by the Shaw Participation Agreement and to perform
its obligations hereunder and thereunder. The PSA, this Agreement and the other agreements
contemplated by the Shaw Participation Agreement have been duly authorized by all requisite
corporate action by Toshiba.
5.3
No Consents Required
.
There are no approvals, authorizations, consents, orders or other actions of, or filings with,
any Person that are required to be obtained or made by Toshiba, Toshiba Sub or the Company in
connection with the execution of, and the consummation of the transactions contemplated under, the
PSA, this Agreement or the other agreements contemplated by the Shaw Participation Agreement,
except for any such consents which have been obtained or will be obtained prior to the Closing.
5.4
No Violations
.
Neither the execution and delivery of this Agreement by Toshiba and the Company nor the
consummation by Toshiba and the Company of the transactions contemplated by this Agreement will (a)
conflict with or result in the breach of any provision of the Articles of Incorporation of Toshiba
or the certificate of incorporation or by-laws of Toshiba Sub or the memorandum of association or
articles of association of the Company (in force immediately prior to Closing) or their respective
Subsidiaries, (b) result in a violation or breach of, or constitute a default under, or require any
indenture, license, contract, agreement or other instrument or obligation to which Toshiba, Toshiba
Sub or the Company is a party, including the agreement with the Outside Investor that is similar to
the Shaw Participation Agreement, or by which any of their respective properties or assets may be
bound, or (c) violate any order, writ, injunction, decree or law applicable to Toshiba, Toshiba Sub, the Company or their respective
Subsidiaries.
5.5
Additional Company Matters
. Each of the Company and US Acquisition Co. has been
recently formed by Toshiba for the ownership of the Westinghouse Group as provided in the
Participation Agreements and each has no other material operations, liabilities or obligations.
Toshiba beneficially owns all of the shares in the capital of the Company and all of the capital
stock of US Acquisition Co. free and clear of all liens, security interests, claims, pledges and
other encumbrances of any nature whatsoever.
5.6
Capitalization
. Immediately prior to Closing, the authorized share capital of the
Company shall be £1,550, divided into 760 A Shares of £1.00 each and 790 B Shares of £1.00 each and
the directors of the Company shall on Closing have authority to issue and allot all such shares.
All shares in the capital of
7
the Company in issue at the date hereof have been issued and allotted
as fully-paid shares. Except for the agreement with the Outside Investor that is similar to the
Shaw Participation Agreement, there are not any subscriptions, options, warrants, calls, rights,
convertible securities or commitments of any character obligating the Company to issue, transfer or
sell any of its shares or other equity interests.
5.7
PSA Matters
. (a) Toshiba has made commercially reasonable efforts to conduct an
appropriate due diligence investigation of the Westinghouse Group and to reflect, to the extent
practicable, the results of such investigation in the terms of the PSA. Since the execution of the
PSA, Toshiba has not become aware of any information or circumstances regarding the Westinghouse
Group that reasonably could have a Material Adverse Effect on the Westinghouse Group.
(b) Toshiba has completed its payment of the Earnest Money Fund in accordance with the
provisions of the PSA.
(c) To the Knowledge of Toshiba, no representation of the Sellers contained in the PSA is
untrue in any material respect. Toshiba has not granted the Sellers any waivers or similar
releases of any of the terms or conditions of the PSA.
5.8
Arms Length Transactions
. Toshiba has not entered into any contract, agreement,
license or other legally binding arrangement with any member of the Westinghouse Group except for
such contracts, agreements, licenses and arrangements which, when entered into or last materially
modified or amended, were, when viewed in the aggregate, on arms length terms.
Notwithstanding anything contained in this Section 5 or any other provision of this Agreement,
it is the explicit intent of each Party that neither Toshiba nor the Company is making any representation or warranty whatsoever, express or implied, except those
representations and warranties set forth in this Section 5, and in entering into this Agreement and
acquiring the Purchased Shares from the Company, the Purchaser expressly acknowledges and agrees
that it is not relying on any statement, representation or warranty, including, but not limited to,
those which may be contained in any materials regarding the Westinghouse Group or any of its
businesses provided to the Purchaser during the course of its due diligence investigation of the
Westinghouse Group, other than those representations and warranties set forth in this Section 5.
6.
Representations and Warranties of the Purchaser
The Purchaser hereby represents and
warrants as of the date hereof and, to the extent provided in Section 8.3(a), as of the Closing, as
follows:
6.1
Organization
. The Purchaser is a limited liability company duly organized, validly
existing and in good standing under the laws of Delaware. Shaw has been duly incorporated and is
validly existing and in good standing under the laws of the State of Louisiana.
8
6.2
Authority; Authorization
. The Purchaser has full corporate power and authority to
execute and deliver this Agreement and the other agreements contemplated by the Shaw Participation
Agreement and perform its obligations hereunder and thereunder. This Agreement and the other
agreements contemplated by the Shaw Participation Agreement have been duly authorized by all
requisite corporation action of the Purchaser. Shaw has the corporate power and corporate
authority to execute and deliver the Indemnification Agreement and to consummate the transactions
contemplated thereby, and the Indemnification Agreement has been duly executed and delivered by
Shaw.
6.3
No Consents Required
. There are no approvals, authorizations, consents, orders or
other actions of, or filings with, any Person that are required to be obtained or made by the
Purchaser in connection with the execution of, and the consummation of the transactions
contemplated under, this Agreement or the other agreements contemplated by the Shaw Participation
Agreement, except for any such consents which have been obtained or will be obtained prior to the
Closing.
6.4
Investment Representations
. (a) The Purchaser is acquiring the Purchased Shares
for its own account, for investment only and has no intention of selling or distributing any of
such shares or any arrangement or understanding with any other person or entity regarding the sale
or distribution of such shares except pursuant to applicable law.
(b) The Purchaser has requested, received, reviewed and considered all information it deems
relevant in making an informed decision to purchase the Purchased Shares in connection with the
transactions contemplated hereby. The Purchaser has had a reasonable time prior to the date hereof
to ask questions and receive answers concerning the terms and conditions of the offering of such
shares, and to obtain any additional information which Toshiba or the Company possesses or could
acquire without unreasonable effort or expense, and generally has such knowledge and experience in
business and financial matters and with respect to investments in securities of privately held
companies as to enable the Purchaser to understand and evaluate the risks of such investment and
form an investment decision with respect thereto.
(c) The Purchaser is knowledgeable, sophisticated and experienced in making, and is qualified
to make, decisions with respect to investments in shares representing an investment decision like
that involved in the transactions contemplated hereby, including the purchase of the Purchased
Shares.
(d) The Purchaser recognizes that an investment in the Purchased Shares involves a high degree
of risk, including a risk of total loss of the Purchasers investment. The Purchaser is able to
bear the economic risk of holding the Purchased Shares for an indefinite period, and has knowledge
and experience in the financial and business matters such that it is capable of evaluating the
risks of the investment in such shares.
9
(e) The Purchaser understands that Toshiba and the Company may be relying on the statements
contained herein to establish an exemption from registration under federal, state and foreign
securities laws.
6.5
Shareholders Agreement; Legends
. The Purchaser understands and agrees that the
Purchased Shares shall in all regards be subject to the provisions of the Shareholders Agreement
and that each certificate or other document evidencing any of the Purchased Shares shall be
endorsed with the legend in the form set forth below, and the Purchaser covenants that it will not
transfer the shares represented by any such certificate without complying with the restrictions on
transfer contained in the Shareholders Agreement and described in the legend endorsed on such
certificate and understands that the Company will refuse to register a transfer of any such shares
unless the conditions specified in the Shareholders Agreement and in the following legend are
satisfied:
THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON
TRANSFER AS SET FORTH IN THE SHAREHOLDERS AGREEMENT DATED AS OF 4 OCTOBER, 2006,
AS THE SAME MAY BE AMENDED FROM TIME TO TIME, COPIES OF WHICH MAY BE OBTAINED UPON
REQUEST FROM THE ISSUER HEREOF.
6.6
No Prior Operations; No Material Adverse Effect
. The Purchaser or its permitted assignee (i) is a wholly owned Subsidiary of Shaw, (ii) has
been formed by Shaw for the ownership of the Purchased Shares and (iii) has no material operations,
liabilities or obligations (except for such indebtedness incurred in connection with the financing
for the transactions contemplated hereby) and since the date of its formation there has occurred no
event or events reasonably likely to have a Material Adverse Effect on the Purchaser. Since August
31, 2005
,
there has occurred no event or events reasonably likely to have a Material Adverse Effect
on Shaw.
Notwithstanding anything contained in this Section 6 or any other provision of this Agreement,
it is the explicit intent of each Party that the Purchaser is not making any representation or
warranty whatsoever, express or implied, except those representations and warranties set forth in
this Section 6, and in entering into this Agreement and in issuing and selling the Purchased
Shares, the Company and Toshiba expressly acknowledge and agree that they are not relying on any
statement, representation or warranty other than those representations and warranties set forth in
this Section 6.
7.
Additional Covenants and Agreements
7.1
Assignment of PSA and Earnest Money Fund
. (a) As promptly as practicable after the
date hereof, and solely to the extent the following has not previously completed, Toshiba shall
assign, to the fullest extent permitted by the terms thereof, all of its rights and obligations
under the PSA to the Company and the US Acquisition Co. provided that, as between the Company and
the US Acquisition Co., the Company shall acquire all of the issued and outstanding shares of
Westinghouse Electric UK Limited, a company incorporated in England, at the PSA
10
Closing. Notwithstanding the foregoing, the Parties acknowledge that Toshiba shall remain jointly liable
with the Company and the US Acquisition Co. to the sellers of Westinghouse Group in accordance with
the provisions of the PSA.
(b) The Company acknowledges that, in connection with the assignment of its rights and
obligations under the PSA, Toshiba, through Toshiba US Sub, shall also assign all of its right,
title and interest in and to the Earnest Money Fund to the US Acquisition Co.
7.2
PSA Closing Date Adjustment
. (a) Toshiba will take all actions reasonably necessary
to effect the Closing Adjustment (as defined in the PSA) on behalf of the Company and the US
Acquisition Co. Upon receipt of the Adjustment Statement (as defined in the PSA) Toshiba shall
promptly provide copies of the same to the Purchaser and Outside Investors and shall use its
commercially reasonable efforts to consult with the Purchaser and Outside Investors regarding the
same and strategy with respect to the resolution of any issues presented thereby.
(b) In the event that the Adjustment Amount is positive (e.g., additional funds are due to the
Sellers) the Parties agree that such surplus will be paid from cash held by the Westinghouse Group
to the extent legally permitted or from the proceeds of debt or equity offerings of the Company and
the US Acquisition Co. or the Westinghouse Group or a combination of the foregoing.
(c) In the event that the Adjustment Amount is negative (e.g., a decrease in the purchase
price payable under the provisions of the PSA), as promptly as practicable after the final
determination of the Adjustment Amount pursuant to the provisions of the PSA, Shaw, the Purchaser
and Toshiba shall cause each of the Company and the US Acquisition Co. to repurchase, to the extent
it is legally permitted to do so, its shares from the shareholders thereof at a purchase price per
share agreed among the shareholders of the Company. Such repurchases shall be allocated between
the Company and US Acquisition Co. as the Parties shall agree, shall be pro rata from each
shareholder based on the total number of shares of the Company and the US Acquisition Co. held by
each shareholder and each of Shaw, Toshiba and the Purchaser consents to such repurchases and
agrees to participate in such repurchases such that the full amount of such Adjustment Amount
deficiency is used to repurchase shares of the Company and the US Acquisition Co.
7.3
Inspection of Records
.
Between the date of this Agreement and the Closing, the Company shall, and Toshiba shall cause
the Company to, allow the officers, attorneys, accountants and other duly authorized
representatives of the Purchaser reasonable access during regular business hours to the records and
files, correspondence, audits and properties, as well as to all information in each case relating
to the business and affairs of the Company.
7.4
Further Efforts
.
11
Between the date of this Agreement and the Closing, each of the Parties will use its
commercially reasonable efforts to cause the conditions to the obligations of the Parties set forth
in Section 8 of this Agreement to be satisfied.
8.
Conditions to the Closing
8.1
Mutual Conditions
.
The respective obligations of the Parties to complete the purchase and sale of the Purchased
Shares and to take the other actions required to be taken by each of the Parties at the Closing is
subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any
of which may be waived jointly by the Parties in writing, in whole or in part):
(a)
Shareholders Agreement and Other Agreements
. The Parties, as applicable, together
with the Outside Investor, as applicable, shall have entered into the Shareholders Agreement. In
addition, Toshiba, Shaw, the Company and the Purchaser, as the case may be, shall have entered into
the Put Agreement and the Commercial Relationship Agreement.
(b)
No Prohibitions
. There shall not be any Action taken by any Governmental
Authority which prohibits consummation of the transactions contemplated hereby.
(c)
PSA
. The PSA shall be in full force and effect and shall have not been terminated
by any Party thereto, the representations and warranties of the Sellers in the PSA shall be true
and correct in all material respects, all of the conditions to the closing of the transactions
contemplated by the PSA (other than such conditions which may only be satisfied as of the PSA
Closing) shall have been satisfied without waiver thereof by Toshiba and there shall have occurred
no event or events reasonably likely to have a Material Adverse Effect on the Westinghouse Group.
(d)
US Closing
. The transactions contemplated by the US Investment Agreement shall
have been consummated concurrently with the Closing.
8.2
Conditions of the Purchaser
.
The obligation of the Purchaser to complete the purchase of the Purchased Shares, and to take
the other actions required to be taken by the Purchaser at the Closing is subject to the
satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be
waived by the Purchaser in writing, in whole or in part):
(a)
Representations and Warranties
. The representations and warranties of Toshiba
contained in this Agreement, shall be true and correct in all material respects on the Closing with
the same force and effect as though made on and as of the Closing.
12
(b)
Performance
. Toshiba and the Company each shall have in all material respects
performed all obligations and complied with all covenants required by this Agreement to be
performed or complied with by Toshiba and the Company on or prior to the Closing Date.
(c)
Certificate
. Toshiba shall have delivered to the Purchaser a certificate, dated
the Closing Date, certifying that the conditions specified in Sections 8.2(a) and (b) of this
Agreement have been satisfied.
(d)
Consents
. The Purchaser shall have obtained all consents and approvals of Persons
necessary for the unconditional consummation by it of the transactions contemplated hereby.
(e)
Opinion Letter
. The Purchaser shall have received from Skadden, Arps, Slate,
Meagher & Flom LLP, counsel to Toshiba, a written opinion, dated as of the Closing Date and
addressed to the Purchaser, substantially addressing the matters set forth in Exhibit A hereto, and
a reliance letter specifically permitting the initial purchasers of the Bonds (as defined in
Section 10.12) to rely on such opinions to the extent of (i) Section 1 of Exhibit A and (ii)
Sections 2,3 and 4 of Exhibit A as they pertain to the Put Agreement.
(f)
Debt Financing
. The Purchaser shall have received non-recourse debt financing in
the amount of $870 million plus prefunded interest costs calculated at an annual rate of no greater
than 3% on terms reasonably satisfactory to the Purchaser.
(g)
No MAE
. There shall have occurred no event or events reasonably likely to have a
Material Adverse Effect on Toshiba.
8.3
Conditions of Toshiba and the Company
.
The obligation of Toshiba and the Company to complete the sale of the Purchased Shares and to
take the other actions required to be taken by them at the Closing is subject to the satisfaction,
at or prior to the Closing, of each of the following conditions (any of which may be waived by
Toshiba in writing, in whole or in part):
(a)
Representations and Warranties
. The representations and warranties of the
Purchaser contained in this Agreement shall be true and correct in all material respects on the
Closing with the same force and effect as though made on and as of the Closing.
(b)
Performance
. The Purchaser shall have in all material respects performed all
obligations and complied with all covenants required by this Agreement to be performed or complied
with by the Purchaser on or prior to the Closing Date.
13
(c)
Certificate
. The Purchaser shall have delivered to Toshiba a certificate, dated
the Closing Date, certifying that the conditions specified in Sections 8.3(a) and (b) of this
Agreement have been satisfied.
(d)
Consents
. Toshiba shall have obtained all consents and approvals of Persons
necessary for the unconditional consummation of the transactions contemplated hereby.
(e)
Opinion Letter
. Toshiba and the Company shall have received from Vinson & Elkins
LLP, counsel to Shaw, a written opinion, dated as of the Closing Date and addressed to Toshiba and
the Company, substantially addressing the matters set forth in Exhibit B hereto.
(f)
No MAE
. There shall have occurred no event or events reasonably likely to have a
Material Adverse Effect on the Purchaser or Shaw.
9.
Termination
9.1
Termination by Mutual Consent
.
This Agreement may be terminated at any time prior to the Closing by the mutual agreement, in
writing, of each of the Parties.
9.2
Termination by the Purchaser
.
The Purchaser may (but shall not be obligated to) terminate this Agreement prior to the
Closing by giving written notice to Toshiba if:
(a) there has been a material violation or breach by Toshiba or the Company of any of their
respective agreements or covenants contained in this Agreement or there has been a material
violation or breach by Toshiba of any of its representations or warranties contained in this
Agreement such that the condition set forth in Section 8.2(a) cannot be satisfied, which violation
or breach shall not have been cured or corrected, if curable or correctable, within twenty days
after receipt of notice thereof; or
(b) the Closing does not occur on or prior to October 20, 2006 (the
Drop Dead Date
), or
such later date as may be agreed to in writing by the Parties; provided that the non-occurrence is
not due to a breach by the Purchaser of any condition or covenant hereunder.
9.3
Termination by Toshiba and the Company
.
Toshiba and the Company may (but shall not be obligated to) terminate this Agreement prior to
the Closing by giving written notice to the Purchaser if:
(a) there has been a material violation or breach by the Purchaser of any of its agreements or
covenants contained in this Agreement or there has been a material violation or breach by the
Purchaser of any of its representations
14
or warranties contained in this Agreement such that the
condition set forth in Section 8.3(a) cannot be satisfied, which violation or breach shall not have
been cured or corrected, if curable or correctable, within twenty days after receipt of notice
thereof; or
(b) the Closing does not occur on or prior to the Drop Dead Date, or such later date as may be
agreed to in writing by the Parties; provided that the non-occurrence is not due to a breach by
Toshiba or the Company of any condition or covenant hereunder.
9.4
Effect of Termination
.
In the event of such termination, no Party shall have any obligation or liability to any other
in respect to this Agreement, except for any willful breach of contract occurring prior to such
termination.
10.
Miscellaneous
10.1
Notices
.
Any notices and other communications required to be given pursuant to this Agreement shall be
in writing in English and shall be effective upon delivery by hand or upon receipt if sent by mail
(registered or certified mail, postage prepaid) or upon transmission if sent by facsimile (with
request for confirmation of receipt in a manner customary for communications of such respective
type), except that if notice is received after 5:00 p.m., local time, on a business day at the
place of receipt, it shall be effective as of the following business day. Notices are to be
addressed as follows:
If to Toshiba or the Company, to:
Toshiba Corporation
Toshiba Building 31B
1-11, Shibaura, Minato-ku, Tokyo 105-8001, Japan
Attention: General Manager, Legal Affairs Department, Power Systems
Company
Facsimile No.: + 81-3-5444-9183
Email: ushio.kawaguchi@toshiba.co.jp
with a copy, which shall not constitute notice, to:
Skadden, Arps, Slate, Meagher & Flom LLP
Izumi Garden Tower 21
st
Floor
1-6-1 Roppongi Minato-ku, Tokyo, 106-6021, Japan
Attention: Mitsuhiro Kamiya, Partner
Facsimile No.: + 81-3-3568-2626
Email: mkamiya@skadden.com
If to Shaw or the Purchaser, to:
15
The Shaw Group, Inc.
4171 Essen Lane
Baton Rouge, Louisiana 70809
Attention: Gary Graphia, Secretary and General Counsel
Facsimile No.: + 1-225-925-9146
Email: gary.graphia@shawgrp.com
with a copy, which shall not constitute notice, to:
Vinson & Elkins LLP
1001 Fannin Street, Suite 2300
Houston, TX 77002
Attention: David Stone, Partner
Facsimile No.: + 1-713-615-5141
Email: dstone@velaw.com
or to such other respective addresses as any Party shall designate to the others by notice in
writing,
provided
that notice of a change of address shall be effective only upon receipt.
10.2
Entire Agreement
.
This Agreement contains the entire agreement among the Parties with respect to the subject
matter of this Agreement and supersedes all prior agreements and understandings, both oral and
written, between the Parties with respect to such subject matter, including the Shaw Participation
Agreement. No representation, inducement, promise, understanding, condition or warranty not set
forth in this Agreement has been made or relied upon by any Party.
10.3
Assignment
.
No Party may assign its rights or obligations under this Agreement, and any attempted or
purported assignment or any delegation of any Partys rights or obligations arising under this
Agreement to any third party or entity shall be deemed to be null and void, and shall constitute a
material breach by such Party of its duties and obligations under this Agreement; provided,
however, that Purchaser may assign its rights hereunder (a) to any other wholly owned subsidiary of
Shaw which satisfies the requirements of Section 6.6 and (b), after the Closing, to its finance
parties by way of security for the financing arrangements for its acquisition of the Purchased
Shares.
10.4
Waiver and Amendment
.
(a) No provision of this Agreement may be waived unless in writing signed by the Party against
whom the waiver is to be effective, and waiver of any one provision of this Agreement shall not be
deemed to be a waiver of any other provision. This Agreement may be amended only by a written
agreement executed by all of the Parties.
16
(b) No failure or delay by any Party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
10.5
Governing Law
.
This Agreement shall be governed by, and construed in accordance with, the laws of the State
of New York, without giving effect to the principles of conflicts of law thereof and except where
the English law shall apply to the establishment and organizational matters of the Company.
10.6
Severability
.
If it shall be determined by an arbitration tribunal or a court of competent jurisdiction that
any provision or wording of this Agreement shall be invalid or unenforceable, such invalidity or
unenforceability shall not invalidate the entire Agreement, in which case this Agreement shall be
construed so as to limit any term or provision so as to make it enforceable or valid within the
requirements of New York and English law, and, in the event such term or provision cannot be so
limited, this Agreement shall be construed to omit such invalid or unenforceable provisions.
10.7
Headings
.
The section headings contained in this Agreement are for reference only and are not intended
to describe, interpret, define or limit the scope or intent of this Agreement or any provision
hereof.
10.8
Counterparts
.
This Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon the same
instrument.
10.9
Arbitration
.
(a) All disputes, controversies or claims (
Disputes
) arising out of or relating to this
Agreement shall first be settled as far as possible by negotiations between the Parties to the
Dispute, in the form of meetings between senior-management level representatives of the Parties
from their respective nuclear energy businesses, upon the written request (a
Request
) by any such
Party to the other such Parties.
(b) If the Parties to the Dispute are unable to resolve a Dispute within two (2) weeks after
receipt of a Party of a Request, then such Dispute shall be settled as far as possible by
negotiations between the Parties to the Dispute, in
17
the form of meetings of representative officers
(senior vice president or equivalent or above) of such Parties from their respective nuclear energy
business.
(c) If the Parties to the Dispute are unable to resolve a Dispute within four (4) weeks after
receipt by any Party of a Request, then any Party may submit the Dispute to arbitration to be
finally and exclusively resolved under the Arbitration Rules of the International Chamber of
Commerce (
ICC
) then in effect (the
Rules
), except as modified herein. Except as otherwise
agreed by the Parties to any such arbitration, any such arbitration shall be conducted by a number
of arbitrators equal to the number of Parties to the Dispute (for purposes of this Section 10.9,
Toshiba and the Company shall be counted as one party and Shaw and Purchaser shall be counted as
one Party) plus one (1) and each of the Parties to the Dispute shall each select one arbitrator in
accordance with the Rules. The arbitrators so nominated, once confirmed by the International Court
of Arbitration of the ICC (
ICC Court
), shall nominate an additional arbitrator to serve as
chairman, such nomination to be made within 30 days of the confirmation by the ICC Court of the
last arbitrator (other than the chairman). If the initial arbitrators shall fail to nominate an
additional arbitrator within said 30-day period, such additional arbitrator shall be appointed by
the ICC Court. The arbitrators shall be required to submit a written statement of their findings
and conclusions. Except as otherwise agreed by the Parties to such Dispute, exclusive venue of
arbitration shall be New York, New York and the
language of the arbitration shall be English and each of the Parties hereby submits to the
non-exclusive jurisdiction of the state and federal courts located in New York, New York for such
purpose and for the enforcement of any arbitral award. By agreeing to arbitration, the Parties do
not intend to deprive any court of its jurisdiction to issue any pre-arbitral injunction,
pre-arbitral attachment or other order in aid of arbitration proceedings.
(d) None of the Parties or the Arbitrators shall select any Arbitrator for the arbitral
tribunal who has any interest in the Dispute or who has, or within the immediately preceding five
years has had, any economic or other relationship with any Party to the Dispute.
(e) The award of the Arbitrators shall be final and binding upon the Parties, and shall be the
sole and exclusive remedy between and among the Parties regarding any claims, counterclaims,
issues, or accounting presented to the arbitral tribunal. Judgment upon any award may be entered
in any court having jurisdiction thereof.
10.10
Expenses
.
Except as otherwise specifically provided herein, all costs and expenses incurred by a Party
in connection with the execution and delivery of this Agreement shall be paid by the Party
incurring such costs or expenses.
10.11
No Third Party Beneficiaries
.
This Agreement is for the benefit of the Parties and is not intended to confer upon any other
Person any rights or remedies hereunder.
18
10.12
Limited Recourse to Shaw Sub
.(a)
(a) Notwithstanding any other provisions of this Agreement, the obligations of the Purchaser
hereunder are limited recourse obligations of the Purchaser, payable solely from its own assets and
only to the extent of funds available after repayment in full of the Bonds and all other Secured
Obligations. No recourse shall be had to any of the members, shareholders, subscribers, directors,
officers, partners, employees or agents of the Purchaser or any of their respective successors and
assigns in respect to the obligations of the Purchaser hereunder or arising in connection herewith.
(b) Each Party agrees not to institute against, or join any other Person in instituting
against, the Purchaser any bankruptcy, reorganization, arrangement, insolvency, moratorium or
liquidation proceedings or other proceedings
under U.K bankruptcy or similar laws until at least one year and one day or, if longer, the
applicable preference period then in effect plus one day, after the repayment in full of the Bonds
and all other Secured Obligations.
For the purposes of this Section 10.12 and Section 10.13:
Bonds means the bonds issued by Purchaser on or about the date hereof. Immediately after the
issuance of the Bonds, Shaw shall notify to Toshiba and the Company the amount and interest rate of
the Bonds, provided that Shaw shall be responsible or making the foreign exchange conversion to yen
value transparent to Toshiba and the Company.
Secured Obligations means all amounts owed by Purchaser to the secured parties under and in
connection with the Bonds.
10.13
Failure to Close
.
(a) Toshiba shall promptly notify the Purchaser in writing of the date of the consummation of
the PSA Closing.
(b) In the event that the PSA Closing is not consummated by October 20, 2006, for any reason,
Toshiba shall, or shall cause the Company to, pay to the Purchaser in redemption or repurchase of,
and against return of the share certificate for, the Purchased Shares all portions of the Purchase
Price (which Purchase Price shall be paid in Japanese Yen based upon the Yen value of the Bonds
notified in accordance with Section 10.12(b)), which have been paid to the Company by the Purchaser
plus an amount in Japanese Yen equal to plus the actual accrued interest on the Bonds.
19
IN WITNESS WHEREOF, the Parties have executed this Investment Agreement as of the date first
above written.
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TOSHIBA CORPORATION
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By:
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Name:
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Masao Niwano
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Title:
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Director, Corporate Executive Vice
President
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TOSHIBA NUCLEAR ENERGY HOLDINGS (UK) LIMITED
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By:
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Name:
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Shigenori Shiga
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Title:
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President
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NUCLEAR ENERGY HOLDINGS, L.L.C.
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By:
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Name:
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Gary P. Graphia
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Title:
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Vice President and Secretary
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THE SHAW GROUP INC.
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By:
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Name:
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J.M. Bernhard, Jr.
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Title:
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Chairman of the Board and
Chief Executive Officer
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EXHIBIT A
MATTERS TO BE ADDRESSED IN OPINION OF COUNSEL TO TOSHIBA
In accordance with the provisions of Section 8.2(e) of the Agreement, Skadden, Arps, Slate,
Meagher & Flom LLP, counsel to Toshiba, shall furnish to the Purchaser at the Closing a legal
opinion with respect to the matters set forth below, subject to customary assumptions and
exceptions. Unless otherwise defined herein, capitalized terms used herein shall have the meanings
given to them in the Agreement.
1. Toshiba has been duly incorporated and is validly existing under the laws of Japan. The
Company has been duly incorporated and is registered in England. Toshiba Sub has been duly
incorporated and is registered in England.
2. Each of Toshiba and the Company has the corporate power and corporate authority to execute
and deliver each of this Agreement, the Shareholders Agreement, the Put Agreement and the
Commercial Relationship Agreement to which it is a party and to consummate the transactions
contemplated thereby, and this Agreement, the Shareholders Agreement and the Put Agreement have
been duly executed and delivered by Toshiba and the Company, respectively, to the extent it is a
party.
3. Each of this Agreement, the Shareholders Agreement, the Put Agreement and the Commercial
Relationship Agreement is a valid and binding agreement of Toshiba and the Company, to the extent
it is a party, enforceable against Toshiba and the Company in accordance with their respective
terms.
4. The execution and delivery of each of this Agreement, the Shareholders Agreement and the
Put Agreement by Toshiba and the Company, to the extent it is a party, and the consummation by
Toshiba and the Company of the transactions contemplated thereby, including the issuance and sale
of the Purchased Shares, do not conflict with Toshibas and the Companys Organizational Documents,
as the case may be.
Exhibit A
EXHIBIT B
MATTERS TO BE ADDRESSED IN OPINION OF COUNSEL TO THE PURCHASER
In accordance with the provisions of Section 8.3(f) of the Agreement, Vinson & Elkins LLP,
counsel to the Purchaser , shall furnish to the Purchaser at the Closing a legal opinion with
respect to the matters set forth below, subject to customary assumptions and exceptions. Unless
otherwise defined herein, capitalized terms used herein shall have the meanings given to them in
the Agreement.
1. The Purchaser has been duly organized and is validly existing and in good standing under
the laws of the State of Delaware. Shaw has been duly incorporated and is validly existing and in
good standing under the laws of the State of Louisiana.
2. The Purchaser has the limited liability company power and corporate authority to execute
and deliver each of this Agreement and the Shareholders Agreement and to consummate the
transactions contemplated thereby, and this Agreement and the Shareholders Agreement have been duly
executed and delivered by the Purchaser. Shaw has the corporate power and corporate authority to
execute and deliver each of this Agreement and the Reimbursement Agreement and to consummate the
transactions contemplated thereby, and this Agreement and the Reimbursement Agreement have been
duly executed and delivered by Shaw.
3. Each of this Agreement and the Shareholders Agreement is a valid and binding agreement of
the Purchaser, enforceable against the Purchaser in accordance with their respective terms. Each
of this Agreement and the Reimbursement Agreement is a valid and binding agreement of Shaw,
enforceable against Shaw in accordance with their respective terms.
4. The execution and delivery of each of this Agreement and the Shareholders Agreement by the
Purchaser and the consummation by the Purchaser of the transactions contemplated thereby do not
conflict with the Purchasers Organizational Documents. The execution and delivery of each of this
Agreement and the Reimbursement Agreement by Shaw and the consummation by Shaw of the transactions
contemplated thereby do not conflict with Shaws Organizational Documents.
Exhibit B
EXHIBIT
10.1
EXECUTION COPY
AMENDMENT NO. 4
AMENDMENT NO. 4 dated as of October 13, 2006 among The Shaw Group Inc. (the
Borrower
), the subsidiaries of the Borrower listed on the signature pages hereto as
Guarantors and BNP Paribas, as administrative agent (in such capacity, the
Agent
)
pursuant to authority granted by all of the Lenders.
The Borrower, the Guarantors party thereto, the Lenders party thereto and the Agent are
parties to a Credit Agreement dated as of April 25, 2005 (as amended by Amendment No. 1 dated as of
October 3, 2005, Amendment No. 2 dated as of February 27, 2006 and Amendment No. 3 dated as of June
20, 2006, and as modified and supplemented and in effect from time to time, the
Credit
Agreement
), providing, subject to the terms and conditions thereof, for extensions of credit
(by means of loans and letters of credit) to be made by said lenders to the Borrower.
The parties hereto wish to amend the Credit Agreement as hereinafter set forth and accordingly
hereby agree as follows:
Section 1.
Definitions
. Except as otherwise defined in this Amendment No. 4, terms
defined in the Credit Agreement are used herein as defined therein.
Section 2.
Amendments
. Subject to the satisfaction of the conditions precedent
specified in Section 4 below, but effective as of the date hereof, the Credit Agreement shall be
amended as follows:
2.01.
References Generally
. References in the Credit Agreement (including references
to the Credit Agreement as amended hereby) to this Agreement (and indirect references such as
hereunder, hereby, herein and hereof) shall be deemed to be references to the Credit
Agreement as amended hereby.
2.02.
Definitions
. Article I of the Credit Agreement shall be amended by amending the
following definitions (to the extent already included in said Article I) and adding the following
definitions in the appropriate alphabetical location (to the extent not already included in said
Article I):
Aggregate Commitment
means $750,000,000 (before giving effect to any
increase of the Aggregate Facility LC Commitment on the Amendment No. 4 Effective Date
pursuant to Section 2.21), as reduced or increased from time to time pursuant to the terms
hereof.
Aggregate Facility LC Commitment
means $750,000,000 (before giving effect to
any increase of the Aggregate Facility LC Commitment on the Amendment No. 4 Effective Date pursuant to Section 2.21), as reduced or increased from
time to time pursuant to the terms hereof.
Aggregate Revolving Credit and Financial LC Commitment
means (a) through and
including November 30, 2007, $525,000,000 and (b) after November 30, 2007, $425,000,000.
Aggregate Revolving Credit Commitment
means (a) through and including
November 30, 2007, $525,000,000 and (b) after November 30, 2007, $425,000,000.
Amendment No. 4
means Amendment No. 4, dated as of October ___, 2006, to
this Agreement.
Amendment No. 4 Effective Date
means the date that the amendments to this
Agreement set forth in Amendment No. 4 become effective.
Consolidated Fixed Charges Ratio
means for any Calculation Period, the ratio
of (a) (i) Shaw EBITDA for such Calculation Period less (ii) Non-Financed Capital
Expenditures plus (iii) the Net Cash Proceeds from the sale of any asset and which is
allocated to any such asset as part of such sale, which would be classified as a fixed or
capital asset on a consolidated balance sheet of the Consolidated Group prepared in
accordance with Agreement Accounting Principles but excluding those expenditures incurred
to replace assets lost due to casualty or condemnation, provided that the proceeds from
insurance or condemnation are used to pay therefor; to (b) the sum of (i) Consolidated
Interest Expense excluding any amortization of financing fees, amortization of discounts
and other interest expenses not paid in cash, (ii) mandatory scheduled principal payments
on any Indebtedness (other than principal due upon the Facility Termination Date and
amounts to be paid in connection with the tender for the Borrowers notes evidencing its
term debt), (iii) taxes paid in cash and determined, directly or indirectly, by the income
of the Borrower or any Person in the Consolidated Group, and (iv) any reimbursement
payments made in respect of disbursements under the Excluded SPV Letters of Credit (but
without double-counting of any such payments and amounts referred to in any of the
preceding clauses (i), (ii) and (iii)).
Consolidated Group
means the Borrower, its Subsidiaries and all other
Persons (other than the Excluded SPV) treated as if they were Subsidiaries of the Borrower
for purposes of preparing consolidated financial statements of the Borrower in accordance
with Agreement Accounting Principles, including those Persons required to be consolidated
by reason of FIN 46.
2
Consolidated Net Income
means, with reference to any period, the net income
(or loss) of the Consolidated Group calculated according to Agreement Accounting Principles
on a consolidated basis for such period, excluding any such net income attributable to any
Investment in any Person (including the Excluded
SPV) that is not a Subsidiary except to the extent of cash distributions from such
Person (including the Excluded SPV) to the Borrower or its Subsidiaries.
Excluded SPV
means Nuclear Energy Holdings, L.L.C., a Delaware limited
liability company, which is a special purpose vehicle created for the sole purpose of
making the Westinghouse Investments and engaging in certain transactions related thereto.
Excluded SPV Letters of Credit
has the meaning specified in
Section
6.30
.
Excluded SPV Notes
has the meaning specified in
Section 6.30
.
Lender Addendum
means a Lender Addendum, substantially in the form of
Exhibit 2.21 to Amendment No. 4, pursuant to which an existing Lender at such time shall
have increased its Commitments or a Person shall have become a Lender and undertaken new
Commitments at such time.
Performance Letter of Credit
means a Letter of Credit qualifying as a
performance-based standby letter of credit under 12 CFR Part 3, Appendix A, Section
3(b)(2)(i) or as a commercial letter of credit or other short-term self liquidating
instrument used to finance the movement of goods that are collateralized by the underlying
shipment under 12 CFR Part 3, Appendix A, Section 3(b)(3), or in each case under any
successor U.S. Comptroller of the Currency regulation.
Revolving Credit Commitment
means, for each Lender, the obligation of such
Lender to make Revolving Credit Loans, other than Swing Line Loans, to Borrower in an
aggregate amount not exceeding its Facility LC Commitment, as modified from time to time
pursuant to the terms hereof.
Subsidiary
of a Person means (i) any corporation (other than the Excluded
SPV) more than 50% of the outstanding securities having ordinary voting power of which
shall at the time be owned or controlled, directly or indirectly, by such Person or by one
or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, or (ii)
any partnership, limited liability company, association, joint venture or similar business
organization (other than the Excluded SPV) more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled. Unless
otherwise expressly provided, all references herein to a Subsidiary shall mean a
Subsidiary of the Borrower. Without limiting the foregoing provisions of this definition,
no Person shall be deemed to be a Subsidiary of the Borrower solely by reason of FIN 46.
3
Supplemental Credit Facility
means any revolving credit facility, term loan
facility, letter of credit facility and/or any combination of any of the foregoing entered
into by the Borrower (other than any such facility entered into as permitted by Section
6.20(b) hereof); provided that (i) no such facility shall
contain any covenant, representation, warranty, event of default, mandatory prepayment
provision or any other measure of financial performance that is not included in this
Agreement or that would be more onerous or restrictive on the Borrower or its Subsidiaries
than the analogous provision contained in this Agreement and (ii) no such facility shall
require the Borrower to make any regularly scheduled prepayment or amortization or require
a reduction of the commitments under such facility prior to the Facility Termination Date.
For purposes hereof, the amount of any Supplemental Credit Facility shall be the higher of
the aggregate amount of extensions thereunder and the aggregate amount of the commitments
to provide extensions thereunder.
Westinghouse Entities
means (a) Toshiba Nuclear Holdings (US) Inc., a
Delaware corporation, and (b) Toshiba Nuclear Holdings (UK) Limited, an English company.
Westinghouse Investments
means the acquisition of up to 20.0% of the issued
and outstanding capital stock of each Westinghouse Entity.
Wholly-Owned Subsidiary
of a Person means (i) any Subsidiary all of the
outstanding voting securities (excluding directors qualifying shares) of which shall at
the time be owned or controlled, directly or indirectly, by such Person or one or more
Wholly-Owned Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization (other than the Excluded SPV)
100% of the ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
2.03.
Increase of the Commitments.
Section 2.21(a) of the Credit Agreement shall be
amended to read as follows:
(a) Subject to Section 2.21(b) below, the amount of the Aggregate Facility LC
Commitment may be increased by an amount measured from the Amendment No. 4 Effective Date
not to exceed the difference of (x) $250,000,000
minus
(y) the aggregate amount of
all Supplemental Credit Facilities permitted by
Section 6.11(p)
, at the request of
the Borrower from time to time as follows: (i) the Borrower shall designate one or more
financial institutions acceptable to the Administrative Agent (which acceptance will not be
unreasonably withheld), to assume Facility LC Commitments in an aggregate amount equal to
the amount of such increase and (ii) on the date that such increase becomes effective,
Revolving Credit Loans shall be repaid and/or borrowed to the extent necessary such that
they shall be held by the Lenders ratably in proportion to their respective Pro Rata Shares (determined after giving
4
effect to such designations). In the event of the designation by
the Borrower of a financial institution pursuant to clause (i) of the preceding sentence
(each financial institution being so designated being referred to herein as an
Assuming Lender
), and subject to the execution and delivery to the Administrative
Agent by the Borrower and such Assuming Lender of documentation satisfactory to the
Administrative Agent in its reasonable discretion to effect such designation: (x) such
Assuming Lender shall become (or, if such Assuming Lender was theretofore a Lender shall
continue as) a Lender having a Facility LC Commitment equal to the amount of such increase
allocated to such Assuming Lender in such designation (plus, if such Assuming Lender was
theretofore a Lender, the amount of the Facility LC Commitment held by such Assuming Lender
immediately prior to such designation) and (y) the participations in outstanding Letters of
Credit and Reimbursement Obligations shall thereupon automatically and without further
action be re-allocated all to the extent necessary such that the participations in such
Letters of Credit and Reimbursement Obligations shall be held by the Lenders ratably in
proportion to their respective Pro Rata Shares (determined after giving effect to such
designations). In no event shall any Lender be required to become an Assuming Lender.
2.04.
Indebtedness
. A new Section 6.11(p) shall be inserted in the Credit Agreement
reading as follows:
(p) Indebtedness under Supplemental Credit Facilities, provided that the aggregate
amount of all Supplemental Credit Facilities shall not exceed the difference of (x)
$250,000,000
minus
(y) the aggregate amount by which the Aggregate Facility LC
Commitments have been increased pursuant to
Section 2.21
on or following the
Amendment No. 4 Effective Date.
2.05.
Investments and Acquisitions
. A new Section 6.14(l) shall be inserted in the
Credit Agreement reading as follows:
(l) Investments in the capital stock of the Excluded SPV, the Excluded SPV Letters of
Credit and any reimbursement payments made in respect of disbursements under the Excluded
SPV Letters of Credit.
2.06.
Liens
. A new Section 6.15(i) shall be inserted in the Credit Agreement reading
as follows:
(i) Liens securing obligations under Supplemental Credit Facilities permitted by
Section 6.11(p)
on assets constituting collateral security under the Collateral
Documents; provided that (x) such Liens shall rank
pari passu
in priority with the Liens
created by the Collateral Documents pursuant to an intercreditor agreement reasonably
satisfactory to the Agent (and as to which the Required Lenders have not objected in
writing after having had not less than 10 days to review the same) and (y) (subject to
Section 2.2(c), if no extensions of credit are outstanding under any Supplemental Credit
Facilities secured by Liens
5
permitted by this paragraph (i)) the sum of the aggregate
amount of all extensions of credit outstanding under Supplemental Credit Facilities plus
the Aggregate Outstanding Credit Exposure (which for purposes of this paragraph (i) shall
be deemed reduced by 50% of the aggregate undrawn stated amount under all
Performance Letters of Credit at the time of determination) shall not exceed the
Borrowing Base at any time during any Restricted Period.
2.07.
Letters of Credit
. Section 6.20 of the Credit Agreement shall be amended to
read as follows:
Section 6.20
Letters of Credit
. The Borrower will not, nor will it permit
any Subsidiary to, apply for or become liable upon or in respect of any Letter of Credit
other than (a) Facility LCs, (b) Performance Letters of Credit in an aggregate amount
(excluding Facility LCs) not to exceed $150,000,000 in the aggregate for Borrower and its
Subsidiaries
provided
that the account partys reimbursement obligations with respect to
such Letters of Credit (other than Facility LCs issued hereunder) are unsecured and (c)
Letters of Credit issued under Supplemental Credit Facilities.
2.08.
Financial Covenants
. Section 6.22.1 of the Credit Agreement shall be amended to
read as follows:
6.22.1
Leverage Ratio
. Borrower will not permit the Leverage Ratio to
exceed (i) 2.75 to 1.00 as of the last day of any of its fiscal quarters ending prior to
August 31, 2007; and (ii) 2.50 to 1.00 as of the last day of any of its fiscal quarters
ending on or after August 31, 2007.
2.09.
Financial Covenants
. Section 6.22.2 of the Credit Agreement shall be amended to
read as follows:
6.22.2
Consolidated Fixed Charge Coverage Ratio
. Borrower will not permit
the Consolidated Fixed Charges Ratio to be less than (i) 2.25 to 1.00 as of the last day of
any of its fiscal quarters ending on or prior to the date 18 months after the Amendment No.
4 Effective Date; and (ii) 2.50 to 1.00 as of the last day of any of its fiscal quarters
ending thereafter.
2.10.
Name, Fiscal Year and Accounting Method
. Section 6.26 of the Credit Agreement
shall be amended to read as follows:
6.26
Name, Fiscal Year and Accounting Method
. The Borrower shall not, and
shall not permit any of its Subsidiaries to, change its name, fiscal year or method of
accounting except as required by Agreement Accounting Principles;
provided, however
, that
(a) any of the Borrower and its Subsidiaries may change its name if the Borrower has given
the Agent 30 days prior written notice of such name change and taken such action as Agent
deems reasonably necessary to continue the perfection of the Liens securing payment of the
Secured Obligations
6
and(b) the Borrower may change its fiscal year on a single occasion if
the Borrower has given the Agent 30 days prior written notice of such change.
2.11.
Excluded SPV
. A new Section 6.30 shall be inserted in the Credit Agreement
reading as follows:
6.30
Excluded SPV
.
(a) Notwithstanding anything to the contrary contained in this Agreement, the
Borrower shall not permit the Excluded SPV to engage in any business or activity, other
than making the Westinghouse Investments and issuing notes, the proceeds of which shall be
used to make the Westinghouse Investments (the
Excluded SPV Notes
).
(b) Notwithstanding anything to the contrary contained in this Agreement, the
Borrower shall not, and shall not permit any Subsidiary to, make any Investment in the
Excluded SPV or incur any Indebtedness or provide other credit support for the direct or
indirect benefit of the Excluded SPV (including any direct or indirect guarantee or other
credit support of any Indebtedness of the Excluded SPV), other than (i) causing revolving
Financial Letters of Credit to be issued under this Agreement in a maximum amount for the
Excluded SPV at any time not to exceed $175,000,000 to provide for payments of principal of
and interest on the Excluded SPV Notes (the
Excluded SPV Letters of Credit
), (ii)
an equity Investment not to exceed $35,000,000 in the Excluded SPV and (iii) the payment of
certain transaction costs and expenses not to exceed $25,000,000 in the aggregate for the
Excluded SPV, relating to the formation of the Excluded SPV, the issuance of the Excluded
SPV Notes and the making of the Westinghouse Investments.
(c) The Borrower shall cause to be inserted into the indenture or similar instrument
governing the Excluded SPV Notes no later than the time the same are issued a provision
reasonably satisfactory to the Agent in form and substance substantially to the effect of
Section 15.8 hereof, but with such changes as shall be necessary to constitute such
provision an acknowledgement by the holders of the Excluded SPV Notes that neither the
Borrower nor any of the Guarantors shall have any liability with respect to the Excluded
SPV Notes.
2.12.
Execution of Collateral Documents
. Section 10.15 of the Credit Agreement shall
be amended by inserting at the end thereof a new sentence to read as follows:
Notwithstanding anything to the contrary contained in this Agreement, the Agent is hereby
empowered and authorized to execute and deliver, on behalf of the Lenders, any
intercreditor agreement reasonably satisfactory to the Required Lenders pursuant to
Section 6.15(i)
.
7
2.13.
Separateness of Excluded SPV
. A new Section 15.8 shall be inserted in the
Credit Agreement reading as follows:
15.8
Separateness of Excluded SPV
. The Lenders acknowledge (i) the
separateness of the Excluded SPV from other Persons, (ii) that each holder of the Excluded
SPV Notes has likely purchased the Excluded SPV Notes in reliance upon the separateness of
the Excluded SPV from other Persons, (iii) that the Excluded SPV has assets and liabilities
that are separate from those of other Persons, (iv) that the obligations of the Borrower
and the Guarantors under the Loan Documents, and any certificate, notice, instrument or
document delivered pursuant thereto (A) do not constitute a debt or obligation of the
Excluded SPV and (B) have not been guaranteed by the Excluded SPV, and (v) that the
Excluded SPV shall not be personally liable to the Lenders for any amounts payable or any
liability under any Loan Document or and any certificate, notice, instrument or document
delivered pursuant thereto.
Section 3.
Representations and Warranties
. The Borrower represents and warrants to
the Lenders that the representations and warranties set forth in Article V of the Credit Agreement
are true and correct on the date hereof as if made on and as of the date hereof (except to the
extent any such representation or warranty is stated to relate solely to an earlier date, in which
case such representation or warranty shall have been true and correct on and as of such earlier
date) and as if each reference in said Article V to this Agreement included reference to this
Amendment No. 4.
Section 4.
Conditions Precedent
. The amendments set forth in Section 2 hereof shall
become effective, as of the date hereof, upon:
(i) the execution and delivery of counterparts of this Amendment No. 4 by the
Borrower, the Guarantors and the Agent pursuant to authority granted by all of the Lenders
(and the Borrower and each Guarantor, by its execution and delivery of this Amendment No.
4, each hereby confirms and ratifies all of its respective obligations under the Guaranty,
the Security Agreement and the Subordination Agreement with respect to the amendments
effected hereby),
(ii) the Borrower furnishing the following to the Agent each in form and substance
satisfactory to the Agent and with sufficient copies for the Lenders, where appropriate,
executed by the relevant Person:
(a) a copy, certified by the Secretary or Assistant Secretary of the
Borrower, of its by-laws,
(b) a copy, certified by the Secretary or Assistant Secretary of the
Borrower, along with a certificate of good standing and existence from the
Secretary of State of the State of Louisiana, of resolutions of its board of
directors authorizing the execution of this Amendment No. 4,
8
(c) an incumbency certificate, executed by the Secretary or Assistant
Secretary of the Borrower which shall identify by name and title and bear the
signatures of the Authorized Officers and any other officers or managers of the
Borrower authorized to sign this Amendment No. 4,
upon which certificates the Agent and the Lenders shall be entitled to rely
until informed of any change in writing by the Borrower, and
(d) a written opinion or opinions of counsel to the Borrower and the
Guarantors, addressed to the Lenders and covering such matters as may be required
by Agent, in form and substance reasonably satisfactory to the Agent, and a copy of
a written opinion of counsel to the Borrower, addressed to the Borrower, to the
effect the Excluded SPV will not be consolidated with the Borrower or any Guarantor
in a case brought under Title 11 of the United States Code in which the Excluded
Subsidiary, the Borrower or any Guarantor is the subject.
(iii) the Borrower furnishing to the Agent each in form and substance satisfactory to
the Agent, and with sufficient copies for the Lenders, a bring-down certificate executed by
the Secretary or Assistant Secretary of each Guarantor, certifying that: (a) the
organizational and operative documents of such Guarantor certified and delivered as of
April 25, 2005 have not been amended, rescinded or otherwise changed and remain in full
force and effect, (b) the incumbency certificate of such Guarantor certified and delivered
as of April 25, 2005 has not been amended, rescinded or otherwise changed, and each
signatory thereto remains an Authorized Officer of such Guarantor and is authorized to sign
this Amendment No. 4, (c) to the best knowledge of such Secretary or Assistant Secretary,
the good standing certificates delivered by such Guarantor in connection with the closing
of the Credit Agreement on April 25, 2005 or the closing of Amendment No. 2 on February 27,
2006, as the case may be, remain true, accurate and correct and that such Secretary or
Assistant Secretary has no knowledge to the contrary thereof and (d) that the copies of the
resolutions of the respective boards of directors, members or managers or any other
governing body authorizing the execution of this Amendment No. 4, as attached to such
certificate, are true, accurate and correct and remain in full force and effect,
(iv) the Borrower furnishing to the Agent (a) copies of the commercial agreements to
be entered into between the Borrower and/or any of its Subsidiaries, on the one hand, and
the Westinghouse Entities (such term and any other capitalized term used in this paragraph
that is not defined herein or in the Credit Agreement having the meanings in this paragraph
assigned to them in the Credit Agreement as contemplated to be amended by this Amendment
No. 4) and/or any of Subsidiaries of either Westinghouse Entity, on the other hand, which
shall be reasonably satisfactory to the Agent, (b) a copy of the offering materials for the
Excluded SPV Notes, which shall be reasonably satisfactory to the Agent and (c) evidence
that the Westinghouse Investments shall have been (or shall be simultaneously) made and the
Excluded SPV Notes shall have been (or shall be simultaneously) issued, in each case
referred to in this clause (c) in
9
accordance with definitive documentation in form and
substance reasonably satisfactory to the Administrative Agent, and
(v) the Agent receiving evidence of the payment by the Borrower of all fees payable to
the Lenders that the Borrower has agreed to pay in connection with this Amendment No. 4
(including a consent fee payable to each Lender equal to 0.125% (12.5 basis points) of such
Lenders Facility LC Commitment).
Section 5.
Miscellaneous
. Except as herein provided, the Credit Agreement shall
remain unchanged and in full force and effect. This Amendment No. 4 may be executed in any number
of counterparts, all of which taken together shall constitute one and the same amendatory
instrument and any of the parties hereto may execute this Amendment No. 4 by signing any such
counterpart. This Amendment No. 4 shall be governed by, and construed in accordance with, the law
of the State of New York.
[Remainder of page intentionally blank]
10
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 4 to be duly executed
and delivered as of the day and year first above written.
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THE SHAW GROUP INC.
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By:
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Robert L. Belk
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Executive Vice President and
Chief Financial Officer
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11
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GUARANTORS:
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WHIPPANY VENTURE I, L.L.C
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HYDRO POWER SOLUTIONS LLC
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By:
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Robert L. Belk
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Executive Vice President
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SHAW CONSTRUCTORS, INC.
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By:
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Ronnie Volentine
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President
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STONE & WEBSTER MICHIGAN, INC.
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By:
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Gary P. Graphia
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Vice President and Secretary
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SO-GLEN GAS CO., LLC
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by its sole member,
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EMCON/OWT, Inc.
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By:
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Robert L. Belk
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Executive Vice President, Assistant Treasurer and
Assistant Chief Financial Officer
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EMCON/OWT, INC.
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By:
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Robert L. Belk
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Executive Vice President, Assistant Treasurer and
Assistant Chief Financial Officer
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12
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GUARANTORS (continued)
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AMERICAN PLASTIC PIPE AND
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SUPPLY, L.L.C.
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B.F. SHAW, INC.
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C.B.P. ENGINEERING CORP.
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EDS EQUIPMENT COMPANY, LLC
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EDS PUERTO RICO, INC.
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ENVIROGEN, INC.
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FIELD SERVICES, INC.
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LFG SPECIALTIES, L.L.C.
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MWR, INC.
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PROSPECT INDUSTRIES (HOLDINGS), INC.
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SHAW
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ALLOY PIPING PRODUCTS, INC.
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SHAW
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BENECO, INC.
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SHAW
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COASTAL, INC.
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SHAW
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CONNEX, INC.
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SHAW
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E & I INVESTMENT HOLDINGS, INC.
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SHAW
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EUROPE, INC.
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SHAW
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ENERGY DELIVERY SERVICES, INC.
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SHAW
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ENVIRONMENTAL, INC.
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SHAW
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ENVIRONMENTAL &
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INFRASTRUCTURE, INC.
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SHAW
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ENVIRONMENTAL &
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INFRASTRUCTURE MASSACHUSETTS, INC.
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SHAW ENVIRONMENTAL
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INTERNATIONAL, INC.
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SHAW
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FABRICATORS, INC.
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SHAW
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FACILITIES, INC.
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SHAW
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FIELD SERVICES, INC.
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SHAW
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FT. LEONARD WOOD HOUSING, L.L.C.
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SHAW
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GLOBAL ENERGY SERVICES, INC.
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SHAW
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GRP OF CALIFORNIA
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SHAW
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INDUSTRIAL SUPPLY CO., INC.
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SHAW
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INFRASTRUCTURE, INC.
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SHAW
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INTELLECTUAL PROPERTY
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HOLDINGS, INC.
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SHAW
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INTERNATIONAL, INC.
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SHAW
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JV HOLDINGS, L.L.C.
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SHAW
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LITTLE ROCK HOUSING, L.L.C.
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SHAW
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LIQUID SOLUTIONS LLC
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SHAW
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MAINTENANCE, INC.
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SHAW
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POWER SERVICES GROUP, L.L.C.
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SHAW
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PROJECT SERVICES GROUP, INC.
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SHAW
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TRANSMISSION & DISTRIBUTION
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SERVICES, INC.
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By:
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Robert L. Belk
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Executive Vice President and Treasurer
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13
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GUARANTORS (continued)
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SHAW WASTE SOLUTIONS, LLC
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By:
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Robert L. Belk
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Executive Vice President and Chief Financial Officer
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STONE & WEBSTER
JSC MANAGEMENT CONSULTANTS, INC.
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By:
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Robert L. Belk
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Executive Vice President, Senior Vice
President and Treasurer
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BADGER TECHNOLOGIES, L.L.C.
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BADGER TECHNOLOGY HOLDINGS, L.LC.
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PIKE PROPERTIES I, INC.
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PIKE PROPERTIES II, INC.
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SHAW GLOBAL, L.L.C.
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By:
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Robert L. Belk
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Vice President and Treasurer
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S C WOODS, L.L.C.
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by its sole member,
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Stone & Webster, Inc.
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By:
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Robert L. Belk
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Executive Vice President and Treasurer
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14
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GUARANTORS (continued)
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INTERNATIONAL CONSULTANTS, L.L.C.
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SHAW
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BEALE HOUSING, L.L.C.
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SHAW
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CAPITAL, INC.
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SHAW
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CAPITAL (NEVADA), INC.
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SHAW
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CENTCOM SERVICES, L.L.C.
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SHAW
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HANSCOM HOUSING, L.L.C.
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SHAW
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HOME LOUISIANA, INC.
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SHAW
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MANAGED SERVICES, INC.
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SHAW
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MANAGEMENT SERVICES
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ONE, INC.
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SHAW
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MORGAN CITY TERMINAL, INC.
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SHAW
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NAPTECH, INC.
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SHAW
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POWER DELIVERY SYSTEMS, INC.
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SHAW
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POWER SERVICES, INC.
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SHAW
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PROCESS AND INDUSTRIAL
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GROUP, INC.
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SHAW
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PROCESS FABRICATORS, INC.
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SHAW
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PROPERTY HOLDINGS, INC.
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SHAW
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SERVICES, L.L.C.
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SHAW
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SSS FABRICATORS, INC.
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SHAW
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SUNLAND FABRICATORS, INC.
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SHAW
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TULSA FABRICATORS, INC.
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STONE & WEBSTER ASIA, INC.
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STONE & WEBSTER HOLDING ONE, INC.
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STONE & WEBSTER HOLDING TWO, INC.
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STONE & WEBSTER, INC.
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STONE & WEBSTER INTERNATIONAL, INC.
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STONE & WEBSTER INTERNATIONAL HOLDINGS, INC.
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STONE & WEBSTER MASSACHUSETTS, INC.
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STONE & WEBSTER PROCESS
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TECHNOLOGY, INC.
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STONE & WEBSTER MANAGEMENT
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CONSULTANTS, INC.
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STONE & WEBSTER SERVICES, L.L.C.
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By:
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Robert L. Belk
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Executive Vice President and Treasurer
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15
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GUARANTORS (continued)
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STONE & WEBSTER CONSTRUCTION, INC.
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By:
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Robert L. Belk
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President and Executive Vice President
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ARLINGTON AVENUE E VENTURE, LLC
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CAMDEN ROAD VENTURE, LLC
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GREAT SOUTHWEST PARKWAY
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VENTURE, LLC
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By:
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T.A. Barfield, Jr.
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President
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STONE & WEBSTER CONSTRUCTION SERVICES, L.L.C.
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By:
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Robert L. Belk
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President and Executive Vice President
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SHAW INTERNATIONAL MANAGEMENT SERVICES ONE, INC
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SHAW INTERNATIONAL MANAGEMENT SERVICES TWO, INC.
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SHAW NORTHEAST HOUSING, L.L.C.
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SHAW NORTHWEST HOUSING, L.L.C.
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SHAW STONE & WEBSTER PUERTO RICO, INC.
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By:
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Robert L. Belk
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Vice President and Treasurer
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16
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GUARANTORS (continued):
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LANDBANK PROPERTIES, L.L.C.
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By:
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T.A. Barfield, Jr.
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Chief Executive Officer and Chairman
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SHAW ENVIRONMENTAL LIABILITY SOLUTIONS, L.L.C.
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By:
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T.A. Barfield, Jr.
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Chairman and Chief Executive Officer
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THE LANDBANK GROUP, INC.
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By:
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T.A. Barfield, Jr.
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Chief Executive Officer
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17
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GUARANTORS (continued):
BENICIA NORTH GATEWAY II, L.L.C.
CHIMENTO WETLANDS, L.L.C.
HL NEWHALL II, L.L.C.
JERNEE MILL ROAD, L.L.C.
KATO ROAD II, L.L.C.
KIP I, L.L.C.
LANDBANK BAKER, L.L.C.
MILLSTONE RIVER WETLAND
SERVICES, L.L.C.
NORWOOD VENTURE I, L.L.C.
OTAY MESA VENTURES II, L.L.C.
PLATTSBURG VENTURE, L.L.C.
RARITAN VENTURE I, L.L.C.
SHAW ALASKA, INC.
SHAW AMERICAS, L.L.C.
SHAW CALIFORNIA, L.L.C.
SHAW CMS, INC.
SHAW MEXICO, L.L.C.
SHAW REMEDIATION SERVICES, L.L.C.
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By:
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T.A. Barfield, Jr.
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President
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INTEGRATED SITE SOLUTIONS, L.L.C.
by its sole member,
Shaw Environmental &
Infrastructure, Inc.
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By:
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Robert L. Belk
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Executive Vice President and Treasurer
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GUARANTORS (continued):
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NUCLEAR TECHNOLOGY SOLUTIONS,
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L.L.C.
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by its sole member,
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S C WOODS, L.L.C.
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by its sole member,
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Stone & Webster, Inc.
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By:
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Robert L. Belk
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Executive Vice President and Treasurer
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SELS ADMINISTRATIVE SERVICES, L.L.C.
by its sole member,
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Shaw Environmental Liability Solutions, L.L.C.
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By:
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T.A. Barfield
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Chairman and Chief Executive Officer
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SHAW ENERGY SERVICES, INC.
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By:
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David Cedro
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President and Treasurer
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AGENT:
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BNP PARIBAS
, as Agent
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By:
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Name:
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Title:
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20
EXHIBIT 2.21
FORM OF LENDER ADDENDUM
LENDER ADDENDUM
Reference is made to the Credit Agreement April 25, 2005 (as amended, modified, renewed or
extended from time to time, the
Credit Agreement
) among The Shaw Group Inc., a Louisiana
corporation (the
Borrower
), the lenders party thereto and BNP Paribas, as Agent for the
Lenders and as an Issuer. Terms used but not defined in this Lender Addendum have the meanings
assigned to such terms in the Credit Agreement.
Upon execution and delivery of this Lender Addendum by the parties hereto as provided in
Section 2.21 and Section 15.17 of the Credit Agreement, the undersigned (i) to the extent not
already a Lender, hereby becomes a Lender under the Credit Agreement and (ii) shall have the
Commitments set forth opposite it signature below, effective as of the date of acceptance specified
below. To the extent that the undersigned is already a Lender under the Credit Agreement, the
Commitments on this Lender Addendum shall supersede its previous Commitments under the Credit
Agreement.
This Lender Addendum shall be construed in accordance with and governed by the law of the
State of New York. This Lender Addendum may be executed by one or more of the parties hereto on
any number of separate counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. Delivery of an executed signature page hereof by facsimile
transmission shall be effective as delivery of a manually executed counterpart hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Lender Addendum to be duly executed
and delivered by their proper and duly authorized officers as of this
___ day of
, 20___.
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Commitments:
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[NAME OF LENDER]
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By:
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Name:
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Title:
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Accepted
and agreed this ___ day of
, 20___:
THE SHAW GROUP INC.
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By:
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Name:
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Title:
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BNP PARIBAS,
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as Agent
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By:
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Name:
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Title:
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2
EXHIBIT 10.2
PUT OPTION AGREEMENT
This PUT OPTION AGREEMENT (this
Agreement
) is made and entered into on October 13, 2006 (the
Effective Date
), between Nuclear Energy Holdings, L.L.C., a Delaware limited liability company
(
NEH
), and Toshiba Corporation, a Japanese corporation (
Toshiba
). NEH and Toshiba are also
referred to herein together as the
Parties
and individually as a
Party
.
RECITALS
A. Subject to the terms and conditions set forth in an Investment Agreement, dated as of
October 4, 2006, among Toshiba, NEH and The Shaw Group Inc., NEH has directly agreed to acquire 800
shares of Class A Stock of
TOSHIBA NUCLEAR ENERGY HOLDINGS (US) INC
., a Delaware corporation (
US
HoldCo
), for a consideration of $800,000,000 and representing, as of the Effective Date, twenty
percent (20.0%) of the outstanding capital stock of US HoldCo (the
Shares
).
B. On or about the date of this Agreement, NEH proposes to issue up to JPY50,980,000,000
aggregate principal amount of 2.20% Fixed Rate Bonds due 2013 and JPY78,000,000,000 aggregate
principal amount of Floating Rate Bonds due 2013 (the
Bonds
), the proceeds of which will be used
to fund the acquisition of the Shares by NEH. NEHs obligations with respect to the Notes will be
secured in favor of the holders of the Notes,
inter alia
, by a security assignment of NEHs rights,
title and interest under this Agreement and a pledge, charge or other security interest over the
Shares.
C. It is a condition to NEHs agreement to directly acquire the Shares that Toshiba provide a
put option with respect to the Shares, on the terms and conditions set forth herein.
NOW, THEREFORE, the Parties, in consideration of the foregoing premises and the terms,
covenants and conditions set forth below, hereby agree as follows:
AGREEMENT
1. DEFINITIONS; INTERPRETATION.
1.1.
Terms Defined in this Agreement
. The following terms when used in this Agreement
shall have the following definitions:
Bankruptcy Law
means any Law of any jurisdiction relating to bankruptcy, insolvency,
corporate reorganization, company arrangement, civil rehabilitation, special liquidation,
moratorium, readjustment of debt, appointment of a conservator (
hozen kanrinin
), trustee
(
kanzai nin
), supervisor (
kantoku iin
), inspector (
chousa iin
), or receiver, or similar
debtor relief, including
hasan
under
Hasan Ho
(law No. 75, 2004 as amended)
, minji saisei
under
Minji Saisei Ho
(law No. 225, 1999 as amended)
, kaisha kousei
under
Kaisha Kousei Ho
(law No. 154, 2000 as amended)
, tokubetsu seisan
under
Kaisha Ho
(law No. 86, 2005 as
amended) and
tokutei choutei
under
Tokuteisaimuto no Chosei no Sokushin no tameno
Tokuteichoutei ni kansuru Houritsu
(law No.158, 1999 as amended).
Business Day
means any day other than those that are bank holidays in Tokyo.
Competitor
means any Person who by itself or through or together with any of its
Subsidiaries, is substantially engaged in the provision of nuclear power plant technology
and/or nuclear fuel supply.
Consolidated Net Worth
means, as of any date, total shareholders equity, being the
sum of stated capital, additional paid-in capital, legal reserves and retained earnings less
any treasury stock, which would appear on a consolidated balance sheet of Toshiba and its
consolidated Subsidiaries as of such date in accordance with US GAAP;
provided
that for the
purpose of calculating Consolidated Net Worth, the effect, if any, of all GAAP Statement of
Financial Accounting Standards No. 87 pension-related non-cash charge shall be excluded;
Debt-to-Equity Ratio
means ratio of total Financial Debt to Consolidated Net Worth.
Financial Debt
means every obligation for money borrowed or evidenced by notes,
bonds, debentures, security instruments and other similar instruments which incur interest
expense and which would, in accordance with US GAAP, be shown on a consolidated balance
sheet of Toshiba.
Government Authority
means any: (a) nation, principality, state, commonwealth,
province, territory, county, municipality, district or other jurisdiction of any nature; (b)
federal, state, local, municipal, foreign or other government; (c) governmental or quasi
governmental authority of any nature (including any governmental division, subdivision,
department, agency, bureau, branch, office, commission, council, board, instrumentality,
officer, official, representative, organization, unit, body or Person and any court or other
tribunal); or (d) individual, Person or body exercising, or entitled to exercise, any
executive, legislative, judicial, administrative, regulatory, police, military or taxing
authority or power of any nature.
JPY
means Japanese Yen.
Law
means any federal, state, local, municipal, foreign or other law, statute,
legislation, constitution, principle of common law, resolution, ordinance, code, order,
edict, decree, proclamation, treaty, convention, rule, regulation, permit, ruling,
directive, pronouncement, requirement (licensing or otherwise), specification,
determination, decision, opinion or interpretation that is, has been or may in the future be
issued, enacted, adopted, passed, approved, promulgated, made, implemented or otherwise put
into effect by or under the authority of any Government Authority.
Person
means any individual, firm, company, corporation, limited liability company,
unincorporated association, partnership, trust, joint venture, governmental authority or
other entity, and shall include any successor (by merger or otherwise) of such entity.
Put Price
means, with respect to any exercise of the Put Option, the per Share price,
expressed in Japanese Yen, of any Share subject to any Put Exercise Notice (as defined in
Section 2.3). The Put Price:
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(a) for each Share subject to the Put Exercise Notice up to and including
sixty-seven percent (67%) of the Shares shall be JPY119,425,926 per Share; and
(b) for each Share subject to the Put Exercise Notice in excess of sixty-seven
percent (67%) of the Shares shall be the product of (x) JPY119,425,926 per Share,
multiplied by
(y) 0.90;
provided
that, in the event that a Put Exercise
Notice is delivered by NEH following the occurrence of a Toshiba Event, the number
in the foregoing clause (y) shall be 1.00.
Subsidiary
means a Person (other than an individual) (a) more than fifty percent
(50%) of whose outstanding shares or securities (representing the right to vote for the
election of directors or other managing authority) are, now or hereafter, owned or
controlled, directly or indirectly, by another Person; or (b) which does not have
outstanding shares or securities, as may be the case in a partnership, joint venture or
unincorporated association, but more than fifty percent (50%) of whose ownership interest
representing the right to make the decisions for such corporation, company or other entity
is, now or hereafter, owned or controlled, directly or indirectly, by another Person.
Toshiba Event
means any of the following:
(a) Toshiba shall fail to have a minimum Consolidated Net Worth of
JPY800,000,000,000;
(b) Toshibas Debt-to-Equity Ratio (determined quarterly based on Toshibas
consolidated quarterly financial statements) shall exceed 2.4 to 1.0;
(c) Toshiba generally becomes unable to pay its debts as such debts become due
(
shiharai funou
), admits to a creditor its inability to pay its debts generally as
such debts become due (
shiharai teishi
) or makes a general assignment or settlement
for the benefit of creditors (
nini seiri
);
(d) a petition (i) for the commencement of a proceeding against Toshiba under
any applicable Bankruptcy Law or similar law now or hereafter in effect, (ii) for
the appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator, conservator (
hozen kanrinin
), trustee (
kanzai nin
), supervisor
(
kantoku iin
), inspector (
chousa iin
) or similar official of all or for any
substantial part of Toshibas property, or (iii) for the winding up or liquidation
of Toshibas affairs, is filed by any third party other than Toshiba;
(e) Toshiba files a petition for the commencement of a proceeding under any
applicable Bankruptcy Law or similar law now or hereafter in effect, or consents to
or makes no objection against the filing of or the entry of an order for relief in
an involuntary proceeding under any such law, or applies for, consents to or
otherwise acquiesces in the appointment of or taking possession
by a receiver, liquidator, assignee, custodian, sequestrator, conservator
(
hozen kanrinin
), trustee (
kanzai nin
), supervisor (
kantoku iin
), inspector (
chosa
iin
) or similar official of Toshiba of all or any substantial part of the property
thereof, or makes any general assignment or settlement for the benefit of the
creditors thereof;
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(f) Toshibas assets, such as its bank accounts, are subject to the issuance of
an order or a notice of provisional attachment (
kari sashiosae
), temporary
attachment order (
hozen sashiosae
) or permanent attachment (
sashiosae
), and, with
respect to a provisional attachment and temporary attachment order only, such
attachment or order remains unstayed and in effect for a period of thirty (30)
consecutive days;
(g) Toshiba ceases, or through an official action of its board of directors
threatens to cease, to carry on all or substantially all of its business;
(h) the clearing house takes procedures for suspension of Toshibas
transactions with banks or other financial institutions (
torihiki teishi shobun
);
(i) Toshiba has materially breached any of its covenants herein, and does not
cure such breach within 30 days after notice from NEH advising Toshiba of such
breach; or
(j) the receipt by NEH of a notice of acceptance or any other similar notice
delivered by Toshiba or any Shareholder(s) (as defined in either Shareholders
Agreement (defined herein)) obligating Toshiba or such Shareholder(s) to purchase,
and obligating NEH to sell, all or any portion of (i) the Shares pursuant to, and in
accordance with, Section 7.06 of the Shareholders Agreement dated October 4, 2006,
among Toshiba, NEH, US HoldCo, and its other shareholders (the
US Shareholders
Agreement
), or (ii) the shares owned by NEH in Toshiba Nuclear Energy Holdings (UK)
Limited, a company incorporated in England (the
UK HoldCo
and, together with US
HoldCo, the
HoldCos
), pursuant to, and in accordance with, Section 7.06 of the
Shareholders Agreement dated October 4, 2006, among Toshiba, NEH, UK HoldCo, and its
other shareholders (the
UK Shareholders Agreement
; and, together with the US
Shareholders Agreement, the
Shareholders Agreements
) (such notice, a
Call Option
Exercise Notice
).
US GAAP
means generally accepted accounting principles in the United States as in
effect on the date of application thereof.
1.2.
Interpretation
.
(a)
Certain Terms
. The words hereof, herein, hereunder and similar words refer
to this Agreement as a whole and not to any particular provision of this Agreement. The term
including is not limited and means including without limitation.
(b)
Section References; Titles and Subtitles
. Unless otherwise noted, all references
to Sections herein are to Sections of this Agreement. The titles, captions and headings of this
Agreement are inserted for convenience of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
(c)
Reference to Entities, Agreements, Statutes
. Unless otherwise expressly provided
herein, (i) references to a Person include its successors and permitted assigns, (ii) references to
agreements (including this Agreement) and other contractual instruments shall be deemed to include
all subsequent amendments, restatements and other modifications
4
thereto or supplements thereof and
(iii) references to any statute or regulation are to be construed as including all statutory and
regulatory provisions consolidating, amending, replacing, supplementing or interpreting such
statute or regulation.
2. PUT RIGHT.
2.1.
Put Right
. NEH shall have the right and option to sell to Toshiba or its
permitted assignee, and upon the exercise of such right and option Toshiba or its permitted
assignee shall have the obligation to purchase from NEH, all of the Shares identified in the Put
Exercise Notice (as defined below) (the
Put Right
). NEH and Toshiba hereby agree that the Put
Right may be exercised by NEH on one occasion only.
2.2.
Put Period
. The Put Right shall be exercisable by NEH by delivering a Put
Exercise Notice (defined below) at any time during the period (the
Exercise Period
) commencing on
(and including) the earlier of (i) March 31, 2010 and (ii) the occurrence of a Toshiba Event, and
ending on the earlier of (x) the date that is 30 days after receipt by NEH of the consolidated
financial statements (prepared in accordance with US GAAP) of the HoldCos for the period ending
September 30, 2012 and (y) February 28, 2013 (such earlier date, the
Exercise Period End Date
).
For the avoidance of doubt, if the Put Exercise Notice is not delivered on or before the Exercise
Period End Date, the Exercise Period shall automatically expire, and the Put Right shall thereafter
be of no further force or effect, at 11:59:59 p.m. on Exercise Period End Date. Once the Put Right
is exercised, NEH shall have no Put Right on the remaining Shares, if any.
2.3.
Exercise Process
. In order to exercise the Put Right during the Exercise Period,
NEH shall deliver to Toshiba a written notice of such exercise substantially in the form attached
hereto as
Appendix A
(a
Put Exercise Notice
) to such address and marked for such
attention as is specified in Section 5.4. The Put Exercise Notice shall indicate the number of
Shares as to which NEH is then exercising its Put Right, the aggregate Put Price and the closing
date for the purchase (the
Put Closing Date
), which date shall be 90 days after the date on which
the Put Exercise Notice is first delivered by NEH to Toshiba;
provided
that, in the event that a
Toshiba Event (other than a Toshiba Event described in clause (j) of the definition thereof) has
occurred, such date shall be 30 days after the date on which the Put Exercise Notice is delivered
by NEH, in each case subject to Section 2.5. For the avoidance of doubt, the date of exercise of
the Put Right shall be earlier of (a) the date upon which Toshiba receives such Put Exercise Notice
and (b) two Business Days after NEH sends such Put Exercise Notice by internationally recognized
courier service subject to next-day or second-day delivery. Where the Put Closing Date would
otherwise fall on a day that is not a Business Day, the Put Closing Date shall be the next
following Business Day falling thereafter.
2.4.
Put Price
. If the Put Right is exercised pursuant to this Section 2, as payment
for the Shares to be purchased by Toshiba pursuant to the Put Right, on the Put Closing Date
Toshiba shall pay the aggregate Put Price to NEH, or to the order of NEH, by electronic
transfer of immediately available funds to a financial institution and account number
specified by NEH to Toshiba as soon as practicable prior to the Put Closing Date.
2.5.
Sale of Shares
.
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(a) Against payment of the Put Price by Toshiba, and as soon as practicable thereafter, NEH
shall sell and deliver to Toshiba (or its designee), and Toshiba (or its designee) shall receive
and purchase from NEH, the Shares as to which NEH is exercising the Put Right. In connection
therewith, NEH shall (i) deliver to Toshiba or its designee certificates representing the Shares,
duly endorsed for transfer to Toshiba (or its designee), (ii) deliver to Toshiba (or its designee)
evidence that NEHs lenders have released all liens or other security interests in or on such
Shares and (iii) represent and warrant to Toshiba that the Shares transferred pursuant thereto are
transferred free from all liens, charges or encumbrances, but shall not be required to make any
other representations and warranties in respect of the relevant Shares. Other than as expressly
provided herein, there shall be no conditions upon NEHs exercise of the Put Right or the purchase
and sale of the Shares subject thereto.
(b) In the event that Toshiba is restricted, prohibited or disqualified from purchasing or
accepting all or any portion of the Shares from NEH under applicable law or regulation or any
agreement, instrument or other document to which Toshiba or its affiliates is a party, Toshiba may
assign its rights and obligations to purchase the Shares to an entity that is financially and
legally capable of purchasing and accepting delivery of the Shares for the aggregate Put Price;
provided
that (i) the Put Closing Date shall be extended to the date (the
Extended Put Closing
Date
) that is the earlier of (x) 150 days after the Put Exercise Notice is first delivered by NEH
to Toshiba and (y) the date on which the requirements of the Hart-Scott-Rodino Antitrust
Improvements Act, the Exon-Florio Amendment (defined below) and any other applicable regulatory
requirements have been satisfied for the purpose of delivery of the Shares to Toshiba or such
entity, (ii) Toshiba shall ensure that such assignee has sufficient funds to purchase the Shares
and (iii) Toshiba shall remain obligated to pay the aggregate Put Price (together with all other
amounts due under this Agreement) to NEH in the event that such entity fails to perform such
assigned obligations on or before the Extended Put Closing Date. Notwithstanding the foregoing, in
the event that (A) the Put Closing Date is required to be extended pursuant to clause (i) in the
preceding sentence and (B) a Toshiba Event (other than a Toshiba Event described in clause (j) of
the definition thereof) has occurred, Toshiba shall (x) promptly, and in any event not later than
25 days after the receipt by Toshiba of the Put Exercise Notice, provide credit support for
Toshibas obligation in clause (iii) of the preceding sentence in form and substance reasonably
satisfactory to NEH and its lenders from a third party having a credit rating of A2 or higher from
Moodys Investors Service Inc. or A or higher from Rating and Investment Information, Inc., which
credit support will provide that it may be drawn upon or exercised if Toshiba or such entity has
not performed its obligations in full on or before the Extended Put Closing Date, or (y) if Toshiba
fails or is unable to provide such credit support, pay the aggregate Put Price on the original Put
Closing Date. In the event that Toshiba has paid the Put Price under this Section 2.5(b) prior to
the delivery by NEH of all or any portion of the Shares to Toshiba or its designee, NEH shall hold
such Shares (and any proceeds thereof (other than the Put Price)) in trust for and on behalf of,
and to the order of, Toshiba and, subject to applicable law, shall take such actions in respect of
the Shares as Toshiba shall direct.
2.6.
Recapitalizations; Reorganizations
. In the event of any stock dividend, split,
reverse split, combination or recapitalization (each, a
Recapitalization
), (a) the term Shares
shall automatically be deemed to include all securities issued in exchange for or in connection
with the Shares outstanding immediately prior to such Recapitalization, and (b) the Put Price shall
be multiplied by a ratio, (i) the numerator of which is the number of Shares of US HoldCo
outstanding immediately prior to the Recapitalization and (ii) the
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denominator of which is the
number of Shares of US HoldCo outstanding immediately after to the Recapitalization. In the event
of any liquidation, reclassification, merger or consolidation (each, a
Reorganization
), (a) the
term Shares shall automatically be amended to refer to all securities issued or assets
distributed in connection with such Reorganization in exchange for the Shares outstanding
immediately prior to such Reorganization and (b) the Put Price shall automatically be adjusted to
preserve the economic status quo between the parties immediately prior to such Reorganization;
provided
that, in the event of a liquidation in which no securities or other assets are
distributed, Toshiba acknowledges and agrees that it shall remain obligated to pay the aggregate
Put Price in accordance with the terms of this Agreement based upon the total number of Shares held
by NEH immediately prior to such liquidation and NEH shall, upon commencement of the Exercise
Period, be entitled to exercise a Put Exercise Notice in respect thereof.
2.7.
Dividends
. For the avoidance of doubt, with respect to any Shares sold by NEH to
Toshiba (or its designee) upon exercise of the Put Right in accordance with the terms hereof, as
between NEH and Toshiba (or its designee), NEH shall be entitled to any and all dividends,
distributions or similar items that are resolved or declared to be paid or made by US HoldCo by
reference to a record date that is prior to the date of the Put Closing Date, and Toshiba (or its
designee) shall be entitled to any and all dividends, distributions or similar items that are
resolved or declared to be paid or made by the US HoldCo by reference to a record date that is on
or after the date of the Put Closing Date.
2.8.
Related Matters
. Nothing in this Agreement shall be construed as imposing any
obligations on NEH either to exercise or to refrain from exercising any rights or powers conferred
on it by or deriving from the Shares.
2.9.
Superiority of Put Right
. Toshiba acknowledges and agrees that (i) the call
rights set forth in Section 7.06 of the US Shareholders Agreement with respect to the Shares
designated in the Put Exercise Notice are subordinate in right to the Put Right (when exercised),
and (ii) the delivery by NEH (or its designee) of a Put Exercise Notice, whether or not a Call
Option Exercise Notice has been delivered by Toshiba, shall obligate Toshiba to purchase the Shares
described in such Put Exercise Notice on the terms, and subject to the conditions, set forth in
this Agreement notwithstanding any other rights or obligations in respect of such Shares under the
Shareholders Agreement or any other similar document.
2.10.
Time
. Any reference to time in this Agreement should be Tokyo time.
2.11.
Additional Covenants
. Toshiba agrees that it will fully comply with the Special
Security Agreement between Toshiba and the U.S. Department of Energy. Toshiba also agrees that
until (a) if a Put Exercise Notice has been delivered by NEH, the Put Closing Date, and (b)
otherwise, the Exercise Period End Date, it shall not, and shall cause US HoldCo and its
Subsidiaries and affiliates and any holding company of US HoldCo not to commit or fail to commit
any act that would prevent or disqualify Toshiba from purchasing, or make it illegal
for Toshiba to purchase, the Shares under applicable law, or cause the purchase of the Shares
by Toshiba to be set aside under Section 721 of the U.S. Defense Production Act of 1950, 50 U.S.C.
App. 2171, as amended (the
Exon-Florio Amendment
), or any similar law of any other applicable
jurisdiction.
7
2.12.
Toshiba Event Notification
. Toshiba agrees that upon the occurrence of a
Toshiba Event, Toshiba shall immediately, but in any event no later than five (5) Business Days
after the occurrence of such Toshiba Event, notify NEH thereof.
3. RANKING, PAYMENTS AND SET-OFF.
3.1.
Ranking
. The payment obligations of Toshiba under this Agreement shall, save for
such exceptions as may be provided Bankruptcy Laws, at all times rank
pari passu
with all of
Toshibas other present and future unsecured and unsubordinated obligations.
3.2.
Withholding
. All payments made by or on behalf of Toshiba under this Agreement
shall be made free and clear of, and without withholding or deduction for, any taxes, duties,
assessments or governmental charges of whatever nature imposed, levied, collected, withheld or
assessed by or within Japan or any authority therein or thereof having power to tax, unless such
withholding or deduction is required by law. If such withholding or deduction is required by law,
Toshiba shall pay such additional amounts as will result in receipt by NEH of such amounts as would
have been received by NEH had no such withholding or deduction been required.
3.3.
Set-off
. Subject to Section 2.5, (a) NEH shall be absolutely entitled to receive
all amounts payable in respect of this Agreement, and (b) for the purposes of this Agreement,
Toshiba hereby waives, as against NEH, all rights of set-off or counterclaim that would or might
otherwise be available to Toshiba.
4. REPRESENTATIONS AND WARRANTIES.
4.1.
Toshiba
. Toshiba represents and warrants to NEH, as of the Effective Date, that:
(a)
Due Authorization
. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereunder to be carried out by it have been
duly authorized by all necessary corporate action on the part of Toshiba. This Agreement,
and all agreements and documents executed and delivered pursuant to this Agreement,
constitute valid and binding obligations of Toshiba, enforceable against Toshiba in
accordance with its terms, subject to applicable Bankruptcy Laws and other laws or equitable
principles of general application affecting the rights of creditors generally.
(b)
No Conflicts
. Neither the acquisition of the shares of common stock of US
HoldCo by NEH (the
Share Acquisition
) nor the execution or delivery of this Agreement by
Toshiba nor the fulfillment or compliance by Toshiba with any of the terms hereof shall,
with or without the giving of notice and/or the passage of time, (i) conflict with, or
result in a breach of the terms, conditions or provisions of, or constitute a default under,
(A) the organizational or charter documents of Toshiba or US HoldCo or (B) any contract or
any judgment, decree or order to which Toshiba or US HoldCo is subject or by which Toshiba or US HoldCo is bound, or (ii) require any
consent, license, permit, authorization, approval or other action by any Person or
Government Authority which has not yet been obtained or received including any such consent,
license, permit, authorization, approval or other action required under the Exon-Florio
Amendment. Neither the Share Acquisition nor the execution, delivery and performance of
this Agreement by Toshiba or compliance with the
8
provisions hereof by Toshiba shall violate
any provision of any Law to which Toshiba or US HoldCo is subject or by which it is bound.
(c)
No Actions
. There are no lawsuits, actions (or to the best knowledge of
Toshiba, investigations), claims or demands or other proceedings pending or, to the best of
the knowledge of Toshiba, threatened against Toshiba or any of its Subsidiaries which, if
resolved in a manner adverse to Toshiba or such Subsidiaries, would adversely affect the
right or ability of Toshiba to carry out its obligations set forth in this Agreement.
(d)
Toshiba Event
. As of the Effective Date, there is no Toshiba Event nor are
there any events, circumstances or conditions that could reasonably be expected to lead to a
Toshiba Event.
4.2.
NEH
. NEH represents and warrants to Toshiba, as of the Effective Date, that:
(a)
Due Authorization
. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereunder to be carried out by it have been
duly authorized by all necessary corporate action on the part of NEH. This Agreement, and
all agreements and documents executed and delivered pursuant to this Agreement, constitute
valid and binding obligations of NEH, enforceable against NEH in accordance with its terms,
subject to applicable Bankruptcy Laws and other laws or equitable principles of general
application affecting the rights of creditors generally.
(b)
No Conflicts
. Neither the execution or delivery of this Agreement by NEH
nor the fulfillment or compliance by NEH with any of the terms hereof shall, with or without
the giving of notice and/or the passage of time, (i) conflict with, or result in a breach of
the terms, conditions or provisions of, or constitute a default under, (A) the
organizational or charter documents of NEH or (B) any contract or any judgment, decree or
order to which NEH is subject or by which it is bound, or (ii) require any consent, license,
permit, authorization, approval or other action by any Person or Government Authority which
has not yet been obtained or received. The execution, delivery and performance of this
Agreement by NEH and compliance with the provisions hereof by NEH shall not violate any
provision of any Law to which NEH is subject or by which it is bound.
(c)
No Actions
. There are no lawsuits, actions (or to the best knowledge of
NEH, investigations), claims or demands or other proceedings pending or, to the best of the
knowledge of NEH, threatened against NEH or any of its Subsidiaries which, if resolved in a
manner adverse to NEH or such Subsidiaries, would adversely affect the right or ability of
NEH to carry out its obligations set forth in this Agreement.
5. MISCELLANEOUS.
5.1.
Governing Law
. This Agreement, as to which time is of the essence, shall be
construed according to, and the rights of the Parties shall be governed by, the laws of the State
of New York, without reference to any conflict of laws principle that would cause the application
of the laws of any jurisdiction other than the State of New York. In the event of any dispute
between the Parties arising out of or in connection with this Agreement, the
9
Parties shall use good
faith efforts to resolve such dispute amicably. If the Parties cannot resolve such dispute
amicably within sixty (60) days, such dispute shall be finally settled by arbitration in London,
England in accordance with the Rules of Arbitration of the International Chamber of Commerce
(
ICC
) by three arbitrators. One arbitrator shall be appointed by Toshiba, one arbitrator shall
be appointed by NEH and the third arbitrator, who shall serve as the Chair of the tribunal, shall
be selected by the first two. If the third arbitrator is not chosen and nominated to the ICC for
appointment within 30 days of the date of confirmation by the ICC of the latter of the two
party-appointed arbitrators to be confirmed, such arbitrator shall be chosen by the ICC. Any award
rendered thereby shall be final and binding on the Parties and fully enforceable. The award may
include an award of costs, including reasonable attorneys fees and disbursements.
5.2.
Successors and Assigns
. NEH shall have the right to assign, transfer, delegate,
pledge or grant a security interest in any of its rights hereunder without the consent of Toshiba,
(i) to any wholly-owned Subsidiary through which it holds any Shares and which shall become a party
to the Shareholders Agreement, and/or (ii) to any lender or financing party or group of lenders or
financing parties in connection with any financing provided by such lender(s) to NEH for the
purpose of acquiring the Shares,
provided
,
however
, that such lender or financing party shall not
be a Competitor of Toshiba. Toshiba shall have the right to assign this Agreement to its wholly
owned Subsidiary or pursuant to Section 2.5, provided that Toshiba shall not be released of its
obligations hereunder. Subject to the foregoing, the rights and obligations hereunder may not be
assigned or delegated by either Party without the others prior written consent. The provisions
hereof shall inure to the benefit of, and be binding upon, the successors and permitted assigns of
the Parties.
5.3.
Entire Agreement; Amendment
. This Agreement constitutes the full and entire
understanding and agreement between the Parties with regard to the subject matter hereof. Any term
of this Agreement may be amended only with the written consent of each Party.
5.4.
Notices and Other Communications
. Any and all notices, requests, demands and
other communications required or otherwise contemplated to be made under this Agreement shall be in
writing and in English and shall be provided by one or more of the following means and shall be
deemed to have been duly given (a) if delivered personally, when received, (b) if transmitted by
facsimile, on the date of transmission with receipt of a transmittal confirmation, or (c) if by a
nationally or internationally recognized courier service, on the third (3rd) day following the date
of deposit with such courier service, or such earlier delivery date as may be confirmed in writing
to the sender by such courier service. All such notices, requests, demands and other
communications shall be addressed as follows:
To NEH at:
4171 Essen Lane
Baton Rouge, Louisiana 70809
Attention: Secretary and General Counsel
Facsimile: + 1-225-925-9146
with a copy to:
Vinson & Elkins L.L.P.
10
1001 Fannin, Suite 2500
Houston, Texas 77002
Attention: Clifton S. Rankin, Partner
Facsimile: +1-713-615-5162
To Toshiba at:
Toshiba Building 31B
1-1, Shibaura, 1 Chome, Minato-ku, Tokyo 105-8001, Japan
Attention: General Manager, Legal Affairs Department, Power Systems Company
Telephone: +81-3-3457-3706
Facsimile: +81-3-5444-9183
or to such other address or facsimile number as a Party may have specified to the other Party in
writing delivered in accordance with this Section 5.4.
5.5.
Delays or Omissions
. No delay or omission to exercise any right, power or remedy
accruing to any Person hereunder, upon any breach or default under this Agreement, shall impair any
such right, power or remedy nor shall it be construed to be a waiver of any such breach or default,
or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any Person hereunder of any breach or default under this Agreement, or any
waiver on the part of any Person of any provisions or conditions of this Agreement, must be in
writing and shall be effective only to the extent specifically set forth in such writing and signed
by the waiving or consenting Person.
5.6.
Severability
. If any provision of this Agreement is found to be invalid or
unenforceable, then such provision shall be construed, to the extent feasible, so as to render the
provision enforceable and to provide for the consummation of the transactions contemplated hereby
on substantially the same terms as originally set forth herein, and if no feasible interpretation
would save such provision, it shall be severed from the remainder of this Agreement, which shall
remain in full force and effect unless the severed provision is essential to the rights or benefits
intended by the Parties. In such event, the Parties shall use best efforts to negotiate, in good
faith, a substitute, valid and enforceable provision or agreement which most nearly effects the
Parties intent in entering into this Agreement.
5.7.
Further Assurances
. The Parties shall perform such acts, execute and deliver
such instruments and documents and do all other such things as may be reasonably necessary to
effect the transactions contemplated hereby, including in the case of Toshiba causing the US HoldCo
to perform such acts, execute and deliver such instruments and documents and do all other such
things as may be reasonably necessary to effect the transactions contemplated hereby.
5.8.
Costs and Expenses
. The Parties shall each bear their own legal and other costs
and out-of-pocket expenses arising out of the negotiation, preparation and execution of, and
consummation of the transactions contemplated by, this Agreement.
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5.9.
Tax
. Subject to Section 3.2, Shaw acknowledges and agrees that Toshiba shall not
be responsible for any tax that might be imposed on Shaw in connection with the grant by Toshiba of
the Put Right to Shaw or the exercise by Shaw of the Put Right under this Agreement.
5.10.
Counterparts
. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute one instrument.
Execution and delivery of this Agreement by exchange of facsimile copies bearing the facsimile
signature of a Party shall constitute a valid and binding execution and delivery of this Agreement
by such Party.
5.11.
Limited Recourse to NEH
.
(a) Notwithstanding any other provision of this Agreement, the obligations of NEH hereunder
are limited recourse obligations of NEH, payable solely from its own assets and only to the extent
of funds available after repayment in full of the Bonds and all other Secured Obligations. No
recourse shall be had to any of the members, shareholders, subscribers, directors, officers,
partners, employees or agents of NEH or any of their respective successors and assigns in respect
to the obligations of NEH hereunder or arising in connection herewith.
(b) Toshiba agrees not to institute against, or join any other Person in instituting against,
NEH any bankruptcy, reorganization, arrangement, insolvency, moratorium or liquidation proceedings
or other proceedings under U.S. federal or state bankruptcy or similar laws until at least one year
and one day or, if longer, the applicable preference period then in effect plus one day, after the
repayment in full of the Bonds and all other Secured Obligations.
For the purposes of this Section 5.12:
Secured Obligations
means all amounts owed by NEH to the secured parties under and in connection
with the Bonds.
[
Remainder of page intentionally blank
.]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
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TOSHIBA CORPORATION
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By:
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Name:
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Masao Niwano
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Title:
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Director, Corporate Executive Vice
President
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NUCLEAR ENERGY HOLDINGS, L.L.C.
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By:
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Name:
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Gary P. Graphia
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Title:
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Vice President and Secretary
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Signature Page to Put Option Agreement
APPENDIX A
Form of Exercise Notice
[Date]
Toshiba Corporation
Toshiba Building 31B
1-1, Shibaura, 1 Chome, Minato-ku, Tokyo 105-8001, Japan
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Attn:
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General Manager, Legal Affairs Department,
Power Systems Company
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Re:
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Put Option Agreement dated
[__]
September
2006 (the
Put Option Agreement
), between
Nuclear Energy Holdings, L.L.C. (
NEH
) and
Toshiba Corporation (
Toshiba
). Capitalized
terms used but not otherwise defined herein
shall have the respective meanings assigned
to such terms in the Put Option Agreement.
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Dear Sir:
In accordance with Section 2.3 of the Put Option Agreement, NEH hereby provides this notice (this
Put Exercise Notice
) of exercise of the Put Right in the manner specified below:
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A. Shares as to which NEH is exercising the Put Right:
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1. [___] US HoldCo Shares.
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B. Aggregate Put Price:
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JPY[
] [; provided that, in the event that a Toshiba
Event occurs after the date of this Put Exercise Notice but before the Put Closing Date
designated below, the Aggregate Put Price shall be JPY[
]].
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C. Put Closing Date:
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[
] [; provided that, in the event that a Toshiba
Event (other than receipt of a Call Option Exercise Notice) occurs after the date of this
Put Exercise Notice but before such designated Put Closing Date, the Put Closing Date shall
be the earlier to occur of such designated Put Closing Date and the date that is 30 days
after the occurrence of such Toshiba Event].
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Best regards,
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NUCLEAR ENERGY HOLDINGS, L.L.C.
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By:
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Name:
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Title:
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Note: Bracketed language to be included in
the event of an exercise of the Put Right that is not initiated by the
occurrence of a Toshiba Event consistent with the definition of Put
Price in the Put Option Agreement.
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Note: Bracketed language to be included in
the event of an exercise of the Put Right that is not initiated by the
occurrence of a Toshiba Event consistent with Section 2.3 of the Put Option
Agreement.
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EXHIBIT
10.3
PUT OPTION AGREEMENT
This PUT OPTION AGREEMENT (this
Agreement
) is made and entered into on October 13, 2006 (the
Effective Date
), between Nuclear Energy Holdings, L.L.C., a Delaware limited liability company
(
NEH
), and Toshiba Corporation, a Japanese corporation (
Toshiba
). NEH and Toshiba are also
referred to herein together as the
Parties
and individually as a
Party
.
RECITALS
A. Subject to the terms and conditions set forth in an Investment Agreement, dated as of
October 4, 2006, among Toshiba, NEH and The Shaw Group Inc., NEH has directly agreed to acquire 280
shares of Class A Stock of
TOSHIBA NUCLEAR ENERGY HOLDINGS (UK) LIMITED
, a company incorporated in
England (
UK HoldCo
), for a consideration of $280,000,000 and representing, as of the Effective
Date, twenty percent (20.0%) of the outstanding shares in the capital of UK HoldCo (the
Shares
).
B. On or about the date of this Agreement, NEH proposes to issue up to JPY50,980,000,000
aggregate principal amount of 2.20% Fixed Rate Bonds due 2013 and JPY78,000,000,000 aggregate
principal amount of Floating Rate Bonds due 2013 (the
Bonds
), the proceeds of which will be used
to fund the acquisition of the Shares by NEH. NEHs obligations with respect to the Notes will be
secured in favor of the holders of the Notes,
inter alia
, by a security assignment of NEHs rights,
title and interest under this Agreement and a pledge, charge or other security interest over the
Shares.
C. It is a condition to NEHs agreement to directly acquire the Shares that Toshiba provide a
put option with respect to the Shares, on the terms and conditions set forth herein.
NOW, THEREFORE, the Parties, in consideration of the foregoing premises and the terms,
covenants and conditions set forth below, hereby agree as follows:
AGREEMENT
1. DEFINITIONS; INTERPRETATION.
1.1.
Terms Defined in this Agreement
. The following terms when used in this Agreement
shall have the following definitions:
Bankruptcy Law
means any Law of any jurisdiction relating to bankruptcy, insolvency,
corporate reorganization, company arrangement, civil rehabilitation, special liquidation,
moratorium, readjustment of debt, appointment of a conservator (
hozen kanrinin
), trustee
(
kanzai nin
), supervisor (
kantoku iin
), inspector (
chousa iin
), or receiver, or similar
debtor relief, including
hasan
under
Hasan Ho
(law No. 75, 2004 as amended)
, minji saisei
under
Minji Saisei Ho
(law No. 225, 1999 as amended)
, kaisha kousei
under
Kaisha Kousei Ho
(law No. 154, 2000 as amended)
, tokubetsu seisan
under
Kaisha Ho
(law No. 86, 2005 as
amended) and
tokutei choutei
under
Tokuteisaimuto no Chosei no Sokushin no tameno
Tokuteichoutei ni kansuru Houritsu
(law No.158, 1999 as amended).
Business Day
means any day other than those that are bank holidays in Tokyo.
Competitor
means any Person who by itself or through or together with any of its
Subsidiaries, is substantially engaged in the provision of nuclear power plant technology
and/or nuclear fuel supply.
Consolidated Net Worth
means, as of any date, total shareholders equity, being the
sum of stated capital, additional paid-in capital, legal reserves and retained earnings less
any treasury stock, which would appear on a consolidated balance sheet of Toshiba and its
consolidated Subsidiaries as of such date in accordance with US GAAP;
provided
that for the
purpose of calculating Consolidated Net Worth, the effect, if any, of all GAAP Statement of
Financial Accounting Standards No. 87 pension-related non-cash charge shall be excluded;
Debt-to-Equity Ratio
means ratio of total Financial Debt to Consolidated Net Worth.
Financial Debt
means every obligation for money borrowed or evidenced by notes,
bonds, debentures, security instruments and other similar instruments which incur interest
expense and which would, in accordance with US GAAP, be shown on a consolidated balance
sheet of Toshiba.
Government Authority
means any: (a) nation, principality, state, commonwealth,
province, territory, county, municipality, district or other jurisdiction of any nature; (b)
federal, state, local, municipal, foreign or other government; (c) governmental or quasi
governmental authority of any nature (including any governmental division, subdivision,
department, agency, bureau, branch, office, commission, council, board, instrumentality,
officer, official, representative, organization, unit, body or Person and any court or other
tribunal); or (d) individual, Person or body exercising, or entitled to exercise, any
executive, legislative, judicial, administrative, regulatory, police, military or taxing
authority or power of any nature.
JPY
means Japanese Yen.
Law
means any federal, state, local, municipal, foreign or other law, statute,
legislation, constitution, principle of common law, resolution, ordinance, code, order,
edict, decree, proclamation, treaty, convention, rule, regulation, permit, ruling,
directive, pronouncement, requirement (licensing or otherwise), specification,
determination, decision, opinion or interpretation that is, has been or may in the future be
issued, enacted, adopted, passed, approved, promulgated, made, implemented or otherwise put
into effect by or under the authority of any Government Authority.
Person
means any individual, firm, company, corporation, limited liability company,
unincorporated association, partnership, trust, joint venture, governmental authority or
other entity, and shall include any successor (by merger or otherwise) of such entity.
Put Price
means, with respect to any exercise of the Put Option, the per Share price,
expressed in Japanese Yen, of any Share subject to any Put Exercise Notice (as defined in
Section 2.3). The Put Price:
2
(a) for each Share subject to the Put Exercise Notice up to and including
sixty-seven percent (67%) of the Shares shall be JPY119,425,926 per Share; and
(b) for each Share subject to the Put Exercise Notice in excess of sixty-seven
percent (67%) of the Shares shall be the product of (x) JPY119,425,926 per Share
multiplied by
(y) 0.90;
provided
that, in the event that a Put Exercise
Notice is delivered by NEH following the occurrence of a Toshiba Event, the number
in the foregoing clause (y) shall be 1.00.
Subsidiary
means a Person (other than an individual) (a) more than fifty percent
(50%) of whose outstanding shares or securities (representing the right to vote for the
election of directors or other managing authority) are, now or hereafter, owned or
controlled, directly or indirectly, by another Person; or (b) which does not have
outstanding shares or securities, as may be the case in a partnership, joint venture or
unincorporated association, but more than fifty percent (50%) of whose ownership interest
representing the right to make the decisions for such corporation, company or other entity
is, now or hereafter, owned or controlled, directly or indirectly, by another Person.
Toshiba Event
means any of the following:
(a) Toshiba shall fail to have a minimum Consolidated Net Worth of
JPY800,000,000,000;
(b) Toshibas Debt-to-Equity Ratio (determined quarterly based on Toshibas
consolidated quarterly financial statements) shall exceed 2.4 to 1.0;
(c) Toshiba generally becomes unable to pay its debts as such debts become due
(
shiharai funou
), admits to a creditor its inability to pay its debts generally as
such debts become due (
shiharai teishi
) or makes a general assignment or settlement
for the benefit of creditors (
nini seiri
);
(d) a petition (i) for the commencement of a proceeding against Toshiba under
any applicable Bankruptcy Law or similar law now or hereafter in effect, (ii) for
the appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator, conservator (
hozen kanrinin
), trustee (
kanzai nin
), supervisor
(
kantoku iin
), inspector (
chousa iin
) or similar official of all or for any
substantial part of Toshibas property, or (iii) for the winding up or liquidation
of Toshibas affairs, is filed by any third party other than Toshiba;
(e) Toshiba files a petition for the commencement of a proceeding under any
applicable Bankruptcy Law or similar law now or hereafter in effect, or consents to
or makes no objection against the filing of or the entry of an order for relief in
an involuntary proceeding under any such law, or applies for, consents to or
otherwise acquiesces in the appointment of or taking possession
by a receiver, liquidator, assignee, custodian, sequestrator, conservator
(
hozen kanrinin
), trustee (
kanzai nin
), supervisor (
kantoku iin
), inspector (
chosa
iin
) or similar official of Toshiba of all or any substantial part of the property
thereof, or makes any general assignment or settlement for the benefit of the
creditors thereof;
3
(f) Toshibas assets, such as its bank accounts, are subject to the issuance of
an order or a notice of provisional attachment (
kari sashiosae
), temporary
attachment order (
hozen sashiosae
) or permanent attachment (
sashiosae
), and, with
respect to a provisional attachment and temporary attachment order only, such
attachment or order remains unstayed and in effect for a period of thirty (30)
consecutive days;
(g) Toshiba ceases, or through an official action of its board of directors
threatens to cease, to carry on all or substantially all of its business;
(h) the clearing house takes procedures for suspension of Toshibas
transactions with banks or other financial institutions (
torihiki teishi shobun
);
(i) Toshiba has materially breached any of its covenants herein, and does not
cure such breach within 30 days after notice from NEH advising Toshiba of such
breach; or
(j) the receipt by NEH of a notice of acceptance or any other similar notice
delivered by Toshiba or any Shareholder(s) (as defined in either Shareholders
Agreement (defined herein)) obligating Toshiba or such Shareholder(s) to purchase,
and obligating NEH to sell, all or any portion of (i) the Shares pursuant to, and in
accordance with, Section 7.06 of the Shareholders Agreement dated October 4, 2006,
among Toshiba, NEH, UK HoldCo, and its other shareholders (the
UK Shareholders
Agreement
), or (ii) the shares owned by NEH in Toshiba Nuclear Energy Holdings (US)
Inc., a Delaware corporation (
US HoldCo
and, together with UK HoldCo, the
HoldCos
), pursuant to, and in accordance with, Section 7.06 of the Shareholders
Agreement dated October 4, 2006, among Toshiba, NEH, US HoldCo, and its other
shareholders (the
US Shareholders Agreement
; and, together with the UK
Shareholders Agreement, the
Shareholders Agreements
) (such notice, a
Call Option
Exercise Notice
).
US GAAP
means generally accepted accounting principles in the United States as in
effect on the date of application thereof.
1.2.
Interpretation
.
(a)
Certain Terms
. The words hereof, herein, hereunder and similar words refer
to this Agreement as a whole and not to any particular provision of this Agreement. The term
including is not limited and means including without limitation.
(b)
Section References; Titles and Subtitles
. Unless otherwise noted, all references
to Sections herein are to Sections of this Agreement. The titles, captions and
headings of this Agreement are inserted for convenience of reference only and are not intended
to be a part of or to affect the meaning or interpretation of this Agreement.
(c)
Reference to Entities, Agreements, Statutes
. Unless otherwise expressly provided
herein, (i) references to a Person include its successors and permitted assigns, (ii) references to
agreements (including this Agreement) and other contractual instruments shall be deemed to include
all subsequent amendments, restatements and other modifications thereto or supplements thereof and
(iii) references to any statute or regulation are to be
4
construed as including all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such
statute or regulation.
2. PUT RIGHT.
2.1.
Put Right
. NEH shall have the right and option to sell to Toshiba or its
permitted assignee, and upon the exercise of such right and option Toshiba or its permitted
assignee shall have the obligation to purchase from NEH, all of the Shares identified in the Put
Exercise Notice (as defined below) (the
Put Right
). NEH and Toshiba hereby agree that the Put
Right may be exercised by NEH on one occasion only.
2.2.
Put Period
. The Put Right shall be exercisable by NEH by delivering a Put
Exercise Notice (defined below) at any time during the period (the
Exercise Period
) commencing on
(and including) the earlier of (i) March 31, 2010 and (ii) the occurrence of a Toshiba Event, and
ending on the earlier of (x) the date that is 30 days after receipt by NEH of the consolidated
financial statements (prepared in accordance with US GAAP) of the HoldCos for the period ending
September 30, 2012 and (y) February 28, 2013 (such earlier date, the
Exercise Period End Date
).
For the avoidance of doubt, if the Put Exercise Notice is not delivered on or before the Exercise
Period End Date, the Exercise Period shall automatically expire, and the Put Right shall thereafter
be of no further force or effect, at 11:59:59 p.m. on Exercise Period End Date. Once the Put Right
is exercised, NEH shall have no Put Right on the remaining Shares, if any.
2.3.
Exercise Process
. In order to exercise the Put Right during the Exercise Period,
NEH shall deliver to Toshiba a written notice of such exercise substantially in the form attached
hereto as
Appendix A
(a
Put Exercise Notice
) to such address and marked for such
attention as is specified in Section 5.4. The Put Exercise Notice shall indicate the number of
Shares as to which NEH is then exercising its Put Right, the aggregate Put Price and the closing
date for the purchase (the
Put Closing Date
), which date shall be 90 days after the date on which
the Put Exercise Notice is first delivered by NEH to Toshiba;
provided
that, in the event that a
Toshiba Event (other than a Toshiba Event described in clause (j) of the definition thereof) has
occurred, such date shall be 30 days after the date on which the Put Exercise Notice is delivered
by NEH, in each case subject to Section 2.5. For the avoidance of doubt, the date of exercise of
the Put Right shall be earlier of (a) the date upon which Toshiba receives such Put Exercise Notice
and (b) two Business Days after NEH sends such Put Exercise Notice by internationally recognized
courier service subject to next-day or second-day delivery. Where the Put Closing Date would
otherwise fall on a day that is not a Business Day, the Put Closing Date shall be the next
following Business Day falling thereafter.
2.4.
Put Price
. If the Put Right is exercised pursuant to this Section 2, as payment
for the Shares to be purchased by Toshiba pursuant to the Put Right, on the Put Closing Date
Toshiba shall pay the aggregate Put Price to NEH, or to the order of NEH, by electronic
transfer of immediately available funds to a financial institution and account number specified by
NEH to Toshiba as soon as practicable prior to the Put Closing Date.
2.5.
Sale of Shares
.
(a) Against payment of the Put Price by Toshiba, and as soon as practicable thereafter, NEH
shall sell and deliver to Toshiba (or
5
its designee), and Toshiba (or its designee) shall receive
and purchase from NEH, the Shares as to which NEH is exercising the Put Right. In connection
therewith, NEH shall (i) deliver to Toshiba or its designee certificates representing the Shares
and a duly executed stock transfer form in respect thereof transferring the Shares to Toshiba (or
its designee), (ii) deliver to Toshiba (or its designee) evidence that NEHs lenders have released
all liens or other security interests in or on such Shares and (iii) represent and warrant to
Toshiba that the Shares transferred pursuant thereto are transferred with full title guarantee free
from all liens, charges or encumbrances, but shall not be required to make any other
representations and warranties in respect of the relevant Shares. Other than as expressly provided
herein, there shall be no conditions upon NEHs exercise of the Put Right or the purchase and sale
of the Shares subject thereto.
(b) In the event that Toshiba is restricted, prohibited or disqualified from purchasing or
accepting all or any portion of the Shares from NEH under applicable law or regulation or any
agreement, instrument or other document to which Toshiba or its affiliates is a party, Toshiba may
assign its rights and obligations to purchase the Shares to an entity that is financially and
legally capable of purchasing and accepting delivery of the Shares for the aggregate Put Price;
provided
that (i) the Put Closing Date shall be extended to the date (the
Extended Put Closing
Date
) that is the earlier of (x) 150 days after the Put Exercise Notice is first delivered by NEH
to Toshiba and (y) the date on which the requirements of the Hart-Scott-Rodino Antitrust
Improvements Act, the Exon-Florio Amendment (defined below) and any other applicable regulatory
requirements have been satisfied for the purpose of delivery of the Shares to Toshiba or such
entity, (ii) Toshiba shall ensure that such assignee has sufficient funds to purchase the Shares
and (iii) Toshiba shall remain obligated to pay the aggregate Put Price (together with all other
amounts due under this Agreement) to NEH in the event that such entity fails to perform such
assigned obligations on or before the Extended Put Closing Date. Notwithstanding the foregoing, in
the event that (A) the Put Closing Date is required to be extended pursuant to clause (i) in the
preceding sentence and (B) a Toshiba Event (other than a Toshiba Event described in clause (j) of
the definition thereof) has occurred, Toshiba shall (x) promptly, and in any event not later than
25 days after the receipt by Toshiba of the Put Exercise Notice, provide credit support for
Toshibas obligation in clause (iii) of the preceding sentence in form and substance reasonably
satisfactory to NEH and its lenders from a third party having a credit rating of A2 or higher from
Moodys Investors Service Inc. or A or higher from Rating and Investment Information, Inc., which
credit support will provide that it may be drawn upon or exercised if Toshiba or such entity has
not performed its obligations in full on or before the Extended Put Closing Date, or (y) if Toshiba
fails or is unable to provide such credit support, pay the aggregate Put Price on the original Put
Closing Date. In the event that Toshiba has paid the Put Price under this Section 2.5(b) prior to
the delivery by NEH of all or any portion of the Shares to Toshiba or its designee, NEH shall hold
such Shares (and any proceeds thereof (other than the Put Price)) in
trust for and on behalf of, and to the order of, Toshiba and, subject to applicable law, shall
take such actions in respect of the Shares as Toshiba shall direct.
2.6.
Recapitalizations; Reorganizations
. In the event of any stock dividend, split,
reverse split, combination or recapitalization (each, a
Recapitalization
), (a) the term Shares
shall automatically be deemed to include all securities issued in exchange for or in connection
with the Shares outstanding immediately prior to such Recapitalization, and (b) the Put Price shall
be multiplied by a ratio, (i) the numerator of which is the number of Shares of UK HoldCo
outstanding immediately prior to the Recapitalization and (ii) the denominator of which is the
number of Shares of UK HoldCo outstanding immediately after to the Recapitalization. In the event
of any liquidation, reclassification, merger or
6
consolidation (each, a
Reorganization
), (a) the term Shares shall automatically be amended to refer to all securities issued or assets
distributed in connection with such Reorganization in exchange for the Shares outstanding
immediately prior to such Reorganization and (b) the Put Price shall automatically be adjusted to
preserve the economic status quo between the parties immediately prior to such Reorganization;
provided
that, in the event of a liquidation in which no securities or other assets are
distributed, Toshiba acknowledges and agrees that it shall remain obligated to pay the aggregate
Put Price in accordance with the terms of this Agreement based upon the total number of Shares held
by NEH immediately prior to such liquidation and NEH shall, upon commencement of the Exercise
Period, be entitled to exercise a Put Exercise Notice in respect thereof.
2.7.
Dividends
. For the avoidance of doubt, with respect to any Shares sold by NEH to
Toshiba (or its designee) upon exercise of the Put Right in accordance with the terms hereof, as
between NEH and Toshiba (or its designee), NEH shall be entitled to any and all dividends,
distributions or similar items that are resolved or declared to be paid or made by the UK HoldCo by
reference to a record date that is prior to the date of the Put Closing Date, and Toshiba (or its
designee) shall be entitled to any and all dividends, distributions or similar items that are
resolved or declared to be paid or made by UK HoldCo by reference to a record date that is on or
after the date of the Put Closing Date.
2.8.
Related Matters
. Nothing in this Agreement shall be construed as imposing any
obligations on NEH either to exercise or to refrain from exercising any rights or powers conferred
on it by or deriving from the Shares.
2.9.
Superiority of Put Right
. Toshiba acknowledges and agrees that (i) the call
rights set forth in Section 7.06 of the UK Shareholders Agreement with respect to the Shares
designated in the Put Exercise Notice are subordinate in right to the Put Right (when exercised),
and (ii) the delivery by NEH (or its designee) of a Put Exercise Notice, whether or not a Call
Option Exercise Notice has been delivered by Toshiba, shall obligate Toshiba to purchase the Shares
described in such Put Exercise Notice on the terms, and subject to the conditions, set forth in
this Agreement notwithstanding any other rights or obligations in respect of such Shares under the
Shareholders Agreement or any other similar document.
2.10.
Time
. Any reference to time in this Agreement should be Tokyo time.
2.11.
Additional Covenants
. Toshiba agrees that it will fully comply with the Special
Security Agreement between Toshiba and the U.S. Department of Energy. Toshiba also agrees that
until (a) if a Put Exercise Notice has been delivered by NEH, the Put Closing Date, and (b)
otherwise, the Exercise Period End Date, it shall not, and shall cause the
HoldCos and their respective Subsidiaries and affiliates and any holding company of the
HoldCos not to commit or fail to commit any act that would prevent or disqualify Toshiba from
purchasing, or make it illegal for Toshiba to purchase, the Shares under applicable law, or cause
the purchase of the Shares by Toshiba to be set aside under Section 721 of the U.S. Defense
Production Act of 1950, 50 U.S.C. App. 2171, as amended (the
Exon-Florio Amendment
), or any
similar law of any other applicable jurisdiction.
2.12.
Toshiba Event Notification
. Toshiba agrees that upon the occurrence of a
Toshiba Event, Toshiba shall immediately, but in any event no later than five (5) Business Days
after the occurrence of such Toshiba Event, notify NEH thereof.
7
3. RANKING, PAYMENTS AND SET-OFF.
3.1.
Ranking
. The payment obligations of Toshiba under this Agreement shall, save for
such exceptions as may be provided Bankruptcy Laws, at all times rank
pari passu
with all of
Toshibas other present and future unsecured and unsubordinated obligations.
3.2.
Withholding
. All payments made by or on behalf of Toshiba under this Agreement
shall be made free and clear of, and without withholding or deduction for, any taxes, duties,
assessments or governmental charges of whatever nature imposed, levied, collected, withheld or
assessed by or within Japan or any authority therein or thereof having power to tax, unless such
withholding or deduction is required by law. If such withholding or deduction is required by law,
Toshiba shall pay such additional amounts as will result in receipt by NEH of such amounts as would
have been received by NEH had no such withholding or deduction been required.
3.3.
Set-off
. Subject to Section 2.5, (a) NEH shall be absolutely entitled to receive
all amounts payable in respect of this Agreement, and (b) for the purposes of this Agreement,
Toshiba hereby waives, as against NEH, all rights of set-off or counterclaim that would or might
otherwise be available to Toshiba.
4. REPRESENTATIONS AND WARRANTIES.
4.1.
Toshiba
. Toshiba represents and warrants to NEH, as of the Effective Date, that:
(a)
Due Authorization
. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereunder to be carried out by it have been
duly authorized by all necessary corporate action on the part of Toshiba. This Agreement,
and all agreements and documents executed and delivered pursuant to this Agreement,
constitute valid and binding obligations of Toshiba, enforceable against Toshiba in
accordance with its terms, subject to applicable Bankruptcy Laws and other laws or equitable
principles of general application affecting the rights of creditors generally.
(b)
No Conflicts
. Neither the acquisition of the shares in the capital of UK
HoldCo by NEH (the
Share Acquisition
) nor the execution or delivery of this Agreement by
Toshiba nor the fulfillment or compliance by Toshiba with any of the terms hereof shall,
with or without the giving of notice and/or the passage of time, (i) conflict with, or
result in a breach of the terms, conditions or provisions of, or
constitute a default under, (A) the organizational or charter documents of Toshiba or
UK HoldCo or (B) any contract or any judgment, decree or order to which Toshiba or UK HoldCo
is subject or by which Toshiba or UK HoldCo is bound, or (ii) require any consent, license,
permit, authorization, approval or other action by any Person or Government Authority which
has not yet been obtained or received including any such consent, license, permit,
authorization, approval or other action required under the Exon-Florio Amendment. Neither
the Share Acquisition nor the execution, delivery and performance of this Agreement by
Toshiba or compliance with the provisions hereof by Toshiba shall violate any provision of
any Law to which Toshiba or UK HoldCo is subject or by which it is bound.
8
(c)
No Actions
. There are no lawsuits, actions (or to the best knowledge of
Toshiba, investigations), claims or demands or other proceedings pending or, to the best of
the knowledge of Toshiba, threatened against Toshiba or any of its Subsidiaries which, if
resolved in a manner adverse to Toshiba or such Subsidiaries, would adversely affect the
right or ability of Toshiba to carry out its obligations set forth in this Agreement.
(d)
Toshiba Event
. As of the Effective Date, there is no Toshiba Event nor are
there any events, circumstances or conditions that could reasonably be expected to lead to a
Toshiba Event.
4.2.
NEH
. NEH represents and warrants to Toshiba, as of the Effective Date, that:
(a)
Due Authorization
. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereunder to be carried out by it have been
duly authorized by all necessary corporate action on the part of NEH. This Agreement, and
all agreements and documents executed and delivered pursuant to this Agreement, constitute
valid and binding obligations of NEH, enforceable against NEH in accordance with its terms,
subject to applicable Bankruptcy Laws and other laws or equitable principles of general
application affecting the rights of creditors generally.
(b)
No Conflicts
. Neither the execution or delivery of this Agreement by NEH
nor the fulfillment or compliance by NEH with any of the terms hereof shall, with or without
the giving of notice and/or the passage of time, (i) conflict with, or result in a breach of
the terms, conditions or provisions of, or constitute a default under, (A) the
organizational or charter documents of NEH or (B) any contract or any judgment, decree or
order to which NEH is subject or by which it is bound, or (ii) require any consent, license,
permit, authorization, approval or other action by any Person or Government Authority which
has not yet been obtained or received. The execution, delivery and performance of this
Agreement by NEH and compliance with the provisions hereof by NEH shall not violate any
provision of any Law to which NEH is subject or by which it is bound.
(c)
No Actions
. There are no lawsuits, actions (or to the best knowledge of
NEH, investigations), claims or demands or other proceedings pending or, to the best of the
knowledge of NEH, threatened against NEH or any of its Subsidiaries which, if resolved in a
manner adverse to NEH or such Subsidiaries, would adversely
affect the right or ability of NEH to carry out its obligations set forth in this
Agreement.
5. MISCELLANEOUS.
5.1.
Governing Law
. This Agreement, as to which time is of the essence, shall be
construed according to, and the rights of the Parties shall be governed by, the laws of the State
of New York, without reference to any conflict of laws principle that would cause the application
of the laws of any jurisdiction other than the State of New York. In the event of any dispute
between the Parties arising out of or in connection with this Agreement, the Parties shall use good
faith efforts to resolve such dispute amicably. If the Parties cannot resolve such dispute
amicably within sixty (60) days, such dispute shall be finally settled by
9
arbitration in London, England in accordance with the Rules of Arbitration of the International Chamber of Commerce
(
ICC
) by three arbitrators. One arbitrator shall be appointed by Toshiba, one arbitrator shall
be appointed by NEH and the third arbitrator, who shall serve as the Chair of the tribunal, shall
be selected by the first two. If the third arbitrator is not chosen and nominated to the ICC for
appointment within 30 days of the date of confirmation by the ICC of the latter of the two
party-appointed arbitrators to be confirmed, such arbitrator shall be chosen by the ICC. Any award
rendered thereby shall be final and binding on the Parties and fully enforceable. The award may
include an award of costs, including reasonable attorneys fees and disbursements.
5.2.
Successors and Assigns
. NEH shall have the right to assign, transfer, delegate,
pledge or grant a security interest in any of its rights hereunder without the consent of Toshiba,
(i) to any wholly-owned Subsidiary through which it holds any Shares and which shall become a party
to the Shareholders Agreement, and/or (ii) to any lender or financing party or group of lenders or
financing parties in connection with any financing provided by such lender(s) to NEH for the
purpose of acquiring the Shares,
provided
,
however
, that such lender or financing party shall not
be a Competitor of Toshiba. Toshiba shall have the right to assign this Agreement to its wholly
owned Subsidiary or pursuant to Section 2.5, provided that Toshiba shall not be released of its
obligations hereunder. Subject to the foregoing, the rights and obligations hereunder may not be
assigned or delegated by either Party without the others prior written consent. The provisions
hereof shall inure to the benefit of, and be binding upon, the successors and permitted assigns of
the Parties.
5.3.
Entire Agreement; Amendment
. This Agreement constitutes the full and entire
understanding and agreement between the Parties with regard to the subject matter hereof. Any term
of this Agreement may be amended only with the written consent of each Party.
5.4.
Notices and Other Communications
. Any and all notices, requests, demands and
other communications required or otherwise contemplated to be made under this Agreement shall be in
writing and in English and shall be provided by one or more of the following means and shall be
deemed to have been duly given (a) if delivered personally, when received, (b) if transmitted by
facsimile, on the date of transmission with receipt of a transmittal confirmation, or (c) if by a
nationally or internationally recognized courier service, on the third (3rd) day following the date
of deposit with such courier service, or such earlier delivery date as may be confirmed in writing
to the sender by such courier service. All such notices, requests, demands and other
communications shall be addressed as follows:
To NEH at:
4171 Essen Lane
Baton Rouge, Louisiana 70809
Attention: Secretary and General Counsel
Facsimile: + 1-225-925-9146
with a copy to:
Vinson & Elkins L.L.P.
1001 Fannin, Suite 2500
10
Houston, Texas 77002
Attention: Clifton S. Rankin, Partner
Facsimile: +1-713-615-5162
To Toshiba at:
Toshiba Building 31B
1-1, Shibaura, 1 Chome, Minato-ku, Tokyo 105-8001, Japan
Attention: General Manager, Legal Affairs Department, Power Systems Company
Telephone: +81-3-3457-3706
Facsimile: +81-3-5444-9183
or to such other address or facsimile number as a Party may have specified to the other Party in
writing delivered in accordance with this Section 5.4.
5.5.
Delays or Omissions
. No delay or omission to exercise any right, power or remedy
accruing to any Person hereunder, upon any breach or default under this Agreement, shall impair any
such right, power or remedy nor shall it be construed to be a waiver of any such breach or default,
or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any Person hereunder of any breach or default under this Agreement, or any
waiver on the part of any Person of any provisions or conditions of this Agreement, must be in
writing and shall be effective only to the extent specifically set forth in such writing and signed
by the waiving or consenting Person.
5.6.
Severability
. If any provision of this Agreement is found to be invalid or
unenforceable, then such provision shall be construed, to the extent feasible, so as to render the
provision enforceable and to provide for the consummation of the transactions contemplated hereby
on substantially the same terms as originally set forth herein, and if no feasible interpretation
would save such provision, it shall be severed from the remainder of this Agreement, which shall
remain in full force and effect unless the severed provision is essential to the rights or benefits
intended by the Parties. In such event, the Parties shall use
best efforts to negotiate, in good faith, a substitute, valid and enforceable provision or
agreement which most nearly effects the Parties intent in entering into this Agreement.
5.7.
Further Assurances
. The Parties shall perform such acts, execute and deliver
such instruments and documents and do all other such things as may be reasonably necessary to
effect the transactions contemplated hereby, including in the case of Toshiba causing the UK HoldCo
to perform such acts, execute and deliver such instruments and documents and do all other such
things as may be reasonably necessary to effect the transactions contemplated hereby.
5.8.
Costs and Expenses
. The Parties shall each bear their own legal and other costs
and out-of-pocket expenses arising out of the negotiation, preparation and execution of, and
consummation of the transactions contemplated by, this Agreement.
11
5.9.
Tax
. Subject to Section 3.2, Shaw acknowledges and agrees that Toshiba shall not
be responsible for any tax that might be imposed on Shaw in connection with the grant by Toshiba of
the Put Right to Shaw or the exercise by Shaw of the Put Right under this Agreement.
5.10.
Counterparts
. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute one instrument.
Execution and delivery of this Agreement by exchange of facsimile copies bearing the facsimile
signature of a Party shall constitute a valid and binding execution and delivery of this Agreement
by such Party.
5.11.
Limited Recourse to NEH
.
(a) Notwithstanding any other provision of this Agreement, the obligations of NEH hereunder
are limited recourse obligations of NEH, payable solely from its own assets and only to the extent
of funds available after repayment in full of the Bonds and all other Secured Obligations. No
recourse shall be had to any of the members, shareholders, subscribers, directors, officers,
partners, employees or agents of NEH or any of their respective successors and assigns in respect
to the obligations of NEH hereunder or arising in connection herewith.
(b) Toshiba agrees not to institute against, or join any other Person in instituting against,
NEH any bankruptcy, reorganization, arrangement, insolvency, moratorium or liquidation proceedings
or other proceedings under U.S. federal or state bankruptcy or similar laws until at least one year
and one day or, if longer, the applicable preference period then in effect plus one day, after the
repayment in full of the Bonds and all other Secured Obligations.
For the purposes of this Section 5.12:
Secured Obligations
means all amounts owed by NEH to the secured parties under and in connection
with the Bonds.
[
Remainder of page intentionally blank
.]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
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TOSHIBA CORPORATION
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By:
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Name:
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Masao Niwano
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Title:
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Director, Corporate Executive Vice
President
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NUCLEAR ENERGY HOLDINGS, L.L.C.
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By:
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Name:
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Gary P. Graphia
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Title:
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Vice President and Secretary
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Signature
Page to Put Option Agreement
APPENDIX A
Form of Exercise Notice
[Date]
Toshiba Corporation
Toshiba Building 31B
1-1, Shibaura, 1 Chome, Minato-ku, Tokyo 105-8001, Japan
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Attn:
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General Manager, Legal Affairs Department,
Power Systems Company
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Re:
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Put Option Agreement dated
[__]
September
2006 (the
Put Option Agreement
), between
Nuclear Energy Holdings, L.L.C. (
NEH
) and
Toshiba Corporation (
Toshiba
). Capitalized
terms used but not otherwise defined herein
shall have the respective meanings assigned
to such terms in the Put Option Agreement.
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Dear Sir:
In accordance with Section 2.3 of the Put Option Agreement, NEH hereby provides this notice (this
Put Exercise Notice
) of exercise of the Put Right in the manner specified below:
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A.
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Shares as to which NEH is exercising the Put Right:
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1.
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[___] UK HoldCo Shares.
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B.
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Aggregate Put Price: JPY[
] [; provided that, in the event that a Toshiba
Event occurs after the date of this Put Exercise Notice but before the Put Closing Date
designated below, the Aggregate Put Price shall be JPY[
]
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C.
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Put Closing Date: [
] [; provided that, in the event that a Toshiba
Event (other than receipt of a Call Option Exercise Notice) occurs after the date of this
Put Exercise Notice but before such designated Put Closing Date, the Put Closing Date shall
be the earlier to occur of such designated Put Closing Date and the date that is 30 days
after the occurrence of such Toshiba Event].
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Best regards,
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NUCLEAR ENERGY HOLDINGS, L.L.C.
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By:
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Name:
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Title:
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Note: Bracketed language to be included in
the event of an exercise of the Put Right that is not initiated by the
occurrence of a Toshiba Event consistent with the definition of Put
Price in the Put Option Agreement.
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Note: Bracketed language to be included in
the event of an exercise of the Put Right that is not initiated by the
occurrence of a Toshiba Event consistent with Section 2.3 of the Put Option
Agreement.
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EXHIBIT
10.4
SHAREHOLDERS AGREEMENT
dated as of
October 4, 2006
by and among
TOSHIBA CORPORATION
TSB NUCLEAR ENERGY INVESTMENT US INC.,
NUCLEAR ENERGY HOLDINGS, L.L.C.,
ISHIKAWAJIMA-HARIMA HEAVY INDUSTRIES CO., LTD.
and
TOSHIBA NUCLEAR ENERGY HOLDINGS (US) INC.
TABLE OF CONTENTS
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PAGE
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ARTICLE 1
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Definitions
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SECTION 1.01 Definitions
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2
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ARTICLE 2
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Formation and Purpose of Joint Venture
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SECTION 2.01 Formation of the Company
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7
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SECTION 2.02 Purpose and Scope of the Company
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7
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ARTICLE 3
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Corporate Governance; Management
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SECTION 3.01 The Board
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7
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SECTION 3.02 The Owner Board
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9
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SECTION 3.03 Principal Officers
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12
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SECTION 3.04 Organizational Documents
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13
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SECTION 3.05 Shareholder Actions
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13
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SECTION 3.06 Dividend Policy
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14
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ARTICLE 4
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Certain Operational Matters
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SECTION 4.01 Acquisition of Westinghouse Group
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15
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SECTION 4.02 Repayment of Loans
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16
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SECTION 4.03 Annual Budget and Business Plan
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16
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SECTION 4.04 Shareholder Support of the Westinghouse Group Business
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16
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SECTION 4.05 Personnel Matters
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17
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SECTION 4.06 Coordination Office
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18
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i
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PAGE
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ARTICLE 5
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Certain Agreements among the Company and the Shareholders
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SECTION 5.01 Confidentiality
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18
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SECTION 5.02 Access
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20
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SECTION 5.03 Financial Statements
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20
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SECTION 5.04 Public Announcements
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21
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SECTION 5.05 No Inconsistent Actions
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21
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SECTION 5.06 No Apparent Authority
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22
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SECTION 5.07 Undertaking by Shaw Sub
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22
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ARTICLE 6
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Representations and Warranties
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SECTION 6.01 Organization
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22
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SECTION 6.02 Authorization, Validity and Enforceability of This Agreement
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22
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ARTICLE 7
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Transfer of Shares
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SECTION 7.01 General Restrictions
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23
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SECTION 7.02 Permissible Transfers
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23
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SECTION 7.03 Legend on Share Certificates
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24
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SECTION 7.04 Rights of First Offer
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24
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SECTION 7.05 Tag-Along Rights
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25
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SECTION 7.06 Call Rights
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26
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ARTICLE 8
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Arbitration
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SECTION 8.01 Arbitration
|
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28
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ARTICLE 9
|
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Liquidation
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SECTION 9.01 Liquidation Events
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29
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SECTION 9.02 Liquidation Procedures
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29
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ii
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PAGE
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ARTICLE 10
|
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Miscellaneous
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SECTION 10.01 Amendments; Waivers; Termination
|
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30
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SECTION 10.02 Expenses
|
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30
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SECTION 10.03 Notices
|
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31
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SECTION 10.04 Governing Law; Severability
|
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32
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SECTION 10.05 Counterparts
|
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33
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SECTION 10.06 Entire Agreement
|
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33
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|
SECTION 10.07 Effectiveness
|
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33
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SECTION 10.08 Binding Effect; Benefit
|
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33
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SECTION 10.09 Assignability
|
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33
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SECTION 10.10 Headings
|
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34
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SECTION 10.11 Survival
|
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34
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SECTION 10.12 Further Assurances
|
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34
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SECTION 10.13 No Third-Party Beneficiaries
|
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34
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SECTION 10.14 Specific Performance
|
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35
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SECTION 10.15 Preemptive Rights
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35
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iii
|
SHAREHOLDERS AGREEMENT
AGREEMENT, dated as of October 4, 2006, among Toshiba Corporation, a corporation organized
under the laws of Japan (
Toshiba
), TSB Nuclear Energy Investment US Inc., a Delaware corporation
and a wholly owned Subsidiary (as defined below) of Toshiba (
Toshiba US
), Nuclear Energy
Holdings, L.L.C., a Delaware limited liability company and a wholly owned Subsidiary (
Shaw Sub
)
of The Shaw Group Inc., a Louisiana corporation (
Shaw
), Ishikawajima-Harima Heavy Industries Co.,
Ltd., a corporation organized under the laws of Japan (
IHI
), and Toshiba Nuclear Energy Holdings
(US) Inc., a Delaware corporation (the
Company
).
WHEREAS, Toshiba, on one part, and British Nuclear Fuels PLC and BNFL (Investments US) Ltd.,
on the other part (the
Sellers
), have entered into that certain Purchase and Sale Agreement,
dated as of February 6, 2006 (the
PSA
), pursuant to which Toshiba has agreed to purchase all of
the issued and outstanding shares of BNFL USA Group Inc. and Westinghouse Electric UK Limited
(together with their Subsidiaries, the
Westinghouse Group
); and
WHEREAS, Toshiba plans to cause the Company to acquire all of the issued and outstanding
shares of BNFL USA Group Inc. and to cause Toshiba Nuclear Energy Holdings (UK) Limited (
UK
Acquisition Co.
) to acquire all of the issued and outstanding shares of Westinghouse Electric UK
Limited, respectively; and
WHEREAS, Toshiba has entered into an Agreement Regarding Participation in Investment Program
with each of Shaw and IHI (each, the
Participation Agreement
) pursuant to which (i) Toshiba has
agreed to enter into investment agreements with Shaw and Shaw Sub, and with IHI, respectively
(each, the
Investment Agreement
) governing the terms of subscriptions for shares of the Company
and the UK Acquisition Co., respectively, (ii) Toshiba, Shaw and IHI have agreed to enter, and/or
cause certain of their Subsidiaries to enter, into this Agreement and a similar shareholders
agreement governing the UK Acquisition Co. (the
UK Shareholders Agreement
), (iii) Toshiba and
Shaw have agreed to enter into a Commercial Relationship Agreement (the
Commercial Relationship
Agreement
) affording a preferential status to Shaw when the Westinghouse Group chooses a supplier,
and (iv) Toshiba and each of Shaw and IHI have agreed to enter into Put Option Agreements (each, a
"
Put Option Agreement
), subject to agreement of final documentation of all the terms and
conditions hereof; and
WHEREAS, following the Closing (as defined herein) under the Investment Agreement: (i) Toshiba
US will own 1,040 shares (approximately 53%) of the Class A Stock of the Company,
par value $0.01 per share (the
Class A Shares
), and 2,040 shares (100%) of the Class B Stock
of the Company, par value $0.01 per share (the
Class B Shares
and, together with the Class A
Shares, the
Shares
) which will represent 77% of the aggregate number of the Shares then
outstanding; (ii) Shaw Sub will own 800 shares (approximately 41%) of the Class A Shares which will
represent 20% of the aggregate number of the Shares then outstanding; and (iii) IHI will own 120
shares (approximately 6%) of the Class A Shares which will represent 3% of the aggregate number of
the Shares then outstanding; and
WHEREAS, the parties hereto desire to set forth in this Agreement certain agreements with
respect to the capitalization, management, control, shareholding and certain other matters relating
to the Company;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01
Definitions
The following terms, as used herein, have the following meanings:
Affiliate
means, with respect to any Person, any other Person directly or indirectly
Controlling, Controlled by, or under common Control with, such Person. It is acknowledged that
after the date of this Agreement, Persons who are not presently Affiliates of a Party may become
Affiliates of such Party, and Persons who are presently Affiliates of a Party may cease to be
Affiliates of such Party.
Agreement
means this Shareholders Agreement.
Annual Budget
has the meaning set forth in Section 4.03(a).
Authorized Representative
has the meaning set forth in Section 5.01(a).
Big Four Accounting Firm
means any of (i) Deloitte & Touche LLP, (ii) Ernst & Young LLP,
(iii) KPMG or (iv) PricewaterhouseCoopers LLP or, in each case, any successor thereto.
Board
means the board of directors of the Company.
Business Day
means, with respect to any place, any day except a Saturday, Sunday or other
day on which commercial banks in that place are authorized by law to close.
2
Business Plan
has the meaning set forth in Section 4.03(b).
Chairman
means the Chairman of the Board, who shall have the authority and responsibilities
set forth in this Agreement.
CIC Event
has the meaning set forth in Section 7.06(b).
CIC Shareholder
has the meaning set forth in Section 7.06(b).
Class A Shares
has the meaning set forth in the recitals.
Class B Shares
has the meaning set forth in the recitals.
Closing
means the closing of the transactions contemplated by the Investment Agreements.
Closing Date
means the date on which the Closing occurs.
Commercial Relationship Agreement
has the meaning set forth in the recitals.
Company
has the meaning set forth in the recitals.
Company Value
has the meaning set forth in Section 7.06(c).
Competitor
means any Person who, by itself or through or together with any of its
Subsidiaries, is substantially engaged in the provision of nuclear power plant technology and/or
nuclear fuel supply.
Confidential Information
has the meaning set forth in Section 5.01(a).
Control
of any Person (including the terms Controlling, Controlled by and under common
Control with) means the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such Person, whether through the ownership of a
majority of the voting securities, by contract or otherwise; provided, however, that when
securities representing at least one-third of the voting rights at a shareholders meeting of any
Person are acquired by a Competitor, Control of such Person shall be deemed changed for the purpose
of this Agreement, unless such Person effectively proves such acquirer doesnt have the power
described herein.
Coordination Manager
has the meaning set forth in Section 4.06(b).
Coordination Office
has the meaning set forth in Section 4.06(a).
3
DGCL
means the General Corporation Law of the State of Delaware, as the same may be amended,
modified or supplemented from time to time.
Director
means a member of the Board.
Equity Security
means, with respect to any Person, any stock or other ownership interest
having ordinary voting power to elect directors of, or other persons performing similar functions
with respect to, such Person, or any security convertible into, exercisable for or exchangeable for
such stock or other ownership interest.
Exercise Period End Date
has the meaning set forth in Section 7.01(b).
Extended First Offer Acceptance Period
has the meaning set forth in Section 7.04(b).
First Offer
has the meaning set forth in Section 7.04(a).
First Offer Acceptance Period
has the meaning set forth in Section 7.04(a).
First Offer Shares
has the meaning set forth in Section 7.04(a).
GAAP
has the meaning set forth in Section 5.03(a).
IB Firm
has the meaning set forth in Section 7.06(c).
IHI
has the meaning set forth in the recitals.
Insolvency Event
has the meaning set forth in Section 7.06(a).
Insolvent Shareholder
has the meaning set forth in Section 7.06(a).
Investment Agreement
has the meaning set forth in the recitals.
Liquidation Event
has the meaning set forth in Section 9.01.
Material Adv
e
rse Effect
means, with respect to a Party, a material adverse effect on the
condition (financial or otherwise), business, assets, results of operations or prospects
(considered on a consolidated basis) of such Party.
Organizational Documents
means, collectively, the Certificate of Incorporation and By-laws
of the Company in effect on the Closing Date, as each may be amended, modified or supplemented from
time to time in accordance with the terms thereof.
Owner Board
has the meaning set forth in Section 3.02(a).
4
Owner Board Chairman
has the meaning set forth in Section 3.02(b).
Owner Board Members
has the meaning set forth in Section 3.02(b).
Ownership Percentage
means, with respect to any Shareholder at any time, the percentage
derived by multiplying 100 times a fraction, the numerator of which is the total number of Shares
directly or indirectly beneficially owned by such Shareholder at such time and the denominator of
which is the aggregate number of Shares outstanding at such time.
PSA
has the meaning set forth in the recitals.
PSA Closing
means the closing of the transactions contemplated by the PSA.
Participation Agreement
has the meaning set forth in the recitals.
Party
means each of Toshiba, Toshiba US, Shaw Sub, IHI and the Company, and any other Person
who becomes a party to this Agreement as amended, supplemented or otherwise modified from time to
time.
Permitted Transfer
means (i) a pledge of Shares by Shaw Sub in connection with financing
arrangements for the purchase of its Shares (
provided
,
however
, that the key terms
of such arrangements shall be disclosed to Toshiba in advance and reasonably acceptable to
Toshiba), (ii) the Transfer of Shares by Shaw Sub pursuant to the provisions of its Put Agreement,
(iii) the Transfer of Shares by IHI pursuant to the provisions of its Put Agreement, and (iv) any
Transfer of Shares pursuant to Sections 7.02, 7.04(b), 7.05 or 7.06.
Person
means an individual, corporation, partnership, limited liability company,
association, trust or other entity or organization, including a government or political subdivision
or an agency or instrumentality thereof.
President
has the meaning set forth in Section 3.03(a).
Principal Officer
means each of the President, the Treasurer and the Secretary.
Put Option Agreement
has the meaning set forth in the recitals.
Put Period
means the period commencing on the Closing Date and ending on the date that is
thirty days after the receipt by the Shareholders of the consolidated financial statements
(prepared in accordance with GAAP) of the Company and UK Acquisition Co. for the period ending
September 30, 2012.
Secretary
has the meaning set forth in Section 3.03(a).
5
Sellers
has the meaning set forth in the recitals.
Shareholder
means each Person (other than the Company, Toshiba and Shaw) who shall be a
Party, whether pursuant to the execution and delivery hereof as of the date hereof, or pursuant to
Article 7 or Section 10.09, so long as such Person shall directly or indirectly beneficially own
any Shares.
Shares
has the meaning set forth in the recitals.
Shaw
has the meaning set forth in the recitals.
Shaw Sub
has the meaning set forth in the recitals.
Subsidiary
means, with respect to any Person, (i) any corporation of which the outstanding
stock having at least a majority of votes entitled to be cast in the election of directors under
ordinary circumstances shall at the time be owned, directly or indirectly, by such Person or by
such Person and a Subsidiary or Subsidiaries of such Person or by a Subsidiary or Subsidiaries of
such Person or (ii) any other Person (other than a corporation) of which at least a majority of
voting interests under ordinary circumstances shall at the time be owned or Controlled, directly or
indirectly, by such Person or by such Person and a Subsidiary or Subsidiaries of such Person or by
a Subsidiary or Subsidiaries of such Person.
Tag-Along Exercise Notice
has the meaning set forth in Section 7.05(a).
Tag-Along Notice
has the meaning set forth in Section 7.05(a).
Tag-Along Notice Period
has the meaning set forth in Section 7.05(a).
Tag-Along Offer
has the meaning set forth in Section 7.05(a).
Tagging Shareholders
has the meaning set forth in Section 7.05(a).
Toshiba
has the meaning set forth in the recitals.
Toshiba Budget Calendar
has the meaning set forth in Section 4.03(a).
Toshiba US
has the meaning set forth in the recitals.
Transfer
means to, directly or indirectly, sell, transfer, assign, pledge, encumber,
hypothecate or otherwise dispose of Shares, either voluntarily or involuntarily and with or without
consideration.
Transferring Shareholder
has the meaning set forth in Section 7.04(a).
6
Treasurer
has the meaning set forth in Section 3.03(a).
UK Acquisition Co.
has the meaning set forth in the recitals.
UK Shareholders Agreement
has the meaning set forth in the recitals.
U.S. Dollars
,
US$
and
$
means the lawful currency of the United States of America.
WEC
has the meaning set forth in Section 4.06(a).
Westinghouse Group
has the meaning set forth in the recitals.
ARTICLE 2
FORMATION AND PURPOSE OF JOINT VENTURE
SECTION 2.01
Formation of the Company
The Company has been formed by Toshiba through Toshiba US in connection with its agreement to
acquire the Westinghouse Group pursuant to the PSA.
SECTION 2.02
Purpose and Scope of the Company
(a) The purpose and scope of the Company is to, together with the UK Acquisition Co., own the
entities comprising, and oversee the activities of, the Westinghouse Group.
(b) The Shareholders understand and acknowledge that the entities comprising the Westinghouse
Group will be consolidated Subsidiaries of Toshiba.
ARTICLE 3
CORPORATE GOVERNANCE; MANAGEMENT
SECTION 3.01
The Board
(a) In accordance with the provisions of the Organizational Documents, the business and
affairs of the Company shall be managed by and corporate powers shall be exercised by or under the
direction of the Board solely to the extent required by the DGCL or as set forth herein. To the
extent not so required, the business and affairs of the Company shall be managed by and corporate
powers shall be exercised by or under the direction of the President.
7
(b) The initial Board shall consist of three members, two of whom shall be nominated by
Toshiba US, and one of whom shall be nominated by Shaw Sub. In the event that a Person acquires
Shares and such Persons Ownership Percentage exceeds 10%, then Toshiba US may provide such a
Person with the right to nominate one Director and the total number of the Directors shall increase
by such number;
provided
,
however
, that Toshiba US shall have the right to nominate
such a number of the Directors as represent at least a majority of the member of the Board so long
as Toshiba USs Ownership Percentage is 51% or more. If at any time the Ownership Percentage of
Shaw Sub is less than 10%, Shaw Sub shall lose the right to nominate one Director and promptly
cause the Director nominated by it to resign from the Board, and the number of Directors will be
immediately reduced by such number. Each Shareholder agrees that it will vote its Shares or
execute consents, as the case may be, and take all other necessary action (including, if necessary,
causing the Company to call a special meeting of Shareholders) in order to ensure that the
composition of the Board is at all times as set forth in this Section 3.01 and that the nominees
provided herein are elected to the Board. The members of the Board shall be the same as those of
the UK Acquisition Co.s Board.
(c) Each Shareholder agrees that it will not vote, or grant any consent with respect to, any
of its Shares in favor of the removal from the Board of any Director elected at the request of the
other Shareholders unless the Shareholder entitled to nominate such Director shall have consented
to such removal in writing. Each Shareholder agrees to cause to be called, if necessary, a special
meeting of the Shareholders of the Company and to vote all of the Shares directly or indirectly
beneficially owned by such Shareholder for, or to take all actions by written consent in lieu of
any such meeting necessary to cause, the removal of any Director from the Board if the Shareholder
which nominated such Director requests in a writing, signed by such Shareholder, such Directors
removal for any reason.
(d) If, as a result of death, disability, retirement, resignation, removal or otherwise, there
shall exist or occur any vacancy on the Board with respect to any Director, the Shareholder who
nominated such Director in accordance with Section 3.01(b) shall within 30 days of such event
notify the Board in writing of a replacement Director, and upon any such nomination (whether before
or after such 30-day period) all Shareholders shall promptly take all actions necessary to ensure
the election to the Board of such replacement Director to fill the unexpired term of the Director
whom such new Director is replacing, including, if necessary, calling a special meeting of
Shareholders and voting their Shares thereat, or executing any written consent in lieu thereof, in
favor of the election of such Director.
(e) Meetings of the Board and general Shareholder meetings shall be presided over by the
President. One of the two Directors nominated by Toshiba US shall be the President. A majority of
the members of the Board then in office, provided such number includes at least one Director
nominated by Toshiba US, shall constitute a quorum for the transaction of business at any meeting
of the Board, and all actions of the Board shall require the affirmative approval of at
8
least a majority of the votes of the Board to be cast at the relevant Board meeting. Each
Director present at a meeting of the Board or any committee thereof shall have a number of votes at
such a meeting equal to (a) the Ownership Percentage of all classes of stock of the Company,
considered as a single class, owned by the Shareholder which nominated such Director for election
to the Board, divided by (b) the number of Directors so nominated by such Shareholder who are
present at such meeting. (By way of illustration, based on the Ownership Percentages as of the
Closing Date, the Director nominated by Shaw would have 20 votes while the Directors nominated by
Toshiba US who actually attend the meeting would collectively have 77 votes in the aggregate. As
for Toshiba US nominated Directors, if two of them attend, then each would have 38.5 votes; if only
one attends, he would have 77 votes.) In the event there is a vacancy on the Board and an
individual has been nominated to fill such vacancy, the first order of business at any meeting held
during such time shall be to fill such vacancy.
(f) Any one or more members of the Board may participate in a meeting of the Board by means of
a conference telephone, video conference or similar communications equipment allowing all persons
participating in the meeting to hear each other at the same time. Participation by such means
shall constitute presence in person at a meeting.
(g) Unless otherwise prohibited by law, any action required or permitted to be taken by the
Board may be taken without a meeting if all members of the Board consent in writing to the adoption
of a resolution authorizing the action. The resolution and the written consents thereto by the
members of the Board shall be filed with the minutes of proceedings of the Board.
(h) The languages for all meetings of the Board shall be English. Translation and
interpretation shall be provided as necessary or appropriate. All minutes and other documents to
be presented to the Board shall be prepared (or, in the case of exhibits, summarized) in English.
(i) Notice of any meetings of the Board stating the place, date and hour of the meeting shall
be given not less than five (5) business days before the date of the meeting.
(j) Any Shareholder who does not have a right under this Agreement to nominate a member of the
Board shall have the right to designate an observer who may attend and monitor meetings of the
Board, but who shall have no voting rights.
SECTION 3.02
The Owner Board
(a) There shall be constituted an advisory committee for the Board and the President
(the
Owner Board
) which shall, pursuant to authorization by the Board and to the extent
permitted by the DGCL, have the following functions and responsibilities:
(i) To advise as to the administration and supervision of matters regarding the
Westinghouse Group;
9
(ii) To advise as to the resolution of any matters relating to the Company and
brought to it which may have a Material Adverse Effect on any Shareholder;
(iii) To provide the Board and/or the President with general and universal
advice and supervision for the business supervision of the Westinghouse Group; and
(iv) To do such other functions and responsibilities as may be assigned by the
Board.
The Board and the President shall duly consider any opinion or recommendation made by
the Owner Board.
(b) All costs and expenses associated with the administration of the Owner Board shall be
borne by the Company.
(c) The Owner Board shall initially consist of three voting members (the
Owner Board
Members
) and the Chairman of the Owner Board (the
Owner Board Chairman
),
provided
,
however
, that the number of the voting members shall increase on a one-by-one basis if the
number of Shareholders increases. Each Shareholder (for the avoidance of doubt, including Toshiba
US) shall be entitled to appoint one Owner Board Member (who needs not be a Director) by notifying
the Board in writing, and the President (as nominated by Toshiba US in accordance with Section
3.03(a)) shall serve as the Owner Board Chairman.
(d) If, as a result of death, disability, retirement, resignation, removal or otherwise, there
shall exist or occur any vacancy on the Owner Board, the Shareholder who appointed such Owner Board
Member shall within 30 days of such event notify the Board in writing of a replacement Owner Board
Member.
(e) Meetings of the Owner Board shall be presided over by the Owner Board Chairman or, in the
absence of the Owner Board Chairman, the Owner Board Member nominated by Toshiba US, in which case
the Owner Board Member appointed by Toshiba US shall still be entitled to exercise his votes.
Members of the Owner Board representing a majority of votes to be cast, plus at least attendance of
two Owner Board Members, one of whom shall be an Owner Board Member nominated by a Party other than
Toshiba US, shall constitute a quorum for the transaction of business at any meeting of the Owner
Board. Notice of any meetings of the Owner Board stating the place, date and hour of the meeting
shall be given not less than five (5) business days before the date of the meeting.
(f) Each Owner Board Member present at a meeting or acting by written consent (other than the
Owner Board Chairman) shall have a number of votes equal to the percentage
10
ownership of the stockholder which appointed such person as an Owner Board Member;
provided
,
however
, that the Owner Board Chairman shall have no voting rights.
Except as provided in the immediately following sentence, all actions of the Owner Board shall
require the affirmative approval of at least a majority of the votes entitled to be cast at
meetings of the Owner Board. Notwithstanding the foregoing, none of the following specified
actions may be taken by the Company, the Board, the Owner Board or any member of the Westinghouse
Group without the vote of Owner Board Members holding voting rights at least 1% in excess of the
Ownership Percentage of Toshiba US and any Affiliate thereof at the time the vote is taken (i.e.,
initially, seventy-eight percent (78%)):
(i) the issuance of any Equity Securities of the Company to any Person, other
than pro rata issuances of Equity Securities to the Shareholders;
(ii) the issuance by the Company of any Class A Shares, Class B Shares or any
other Equity Securities which have dividend preferences;
(iii) the issuance of any Equity Securities in any member of the Westinghouse
Group to any Person other than to members of the Westinghouse Group, which will
result in the change of Control of such member of the Westinghouse Group;
(iv) the acquisition or disposition by any member of the Westinghouse Group of
assets or property with a value in excess of ten million dollars ($10 million),
other than in the ordinary course of business or the one already described in
Schedule A attached hereto or the relevant Annual Budget;
(v) the incurrence by any member of the Westinghouse Group of indebtedness for
borrowed money in the amount of ten million dollars ($10 million) or more, other
than in the ordinary course of business or the one guaranteed by Toshiba or the one
already described in the relevant Annual Budget;
(vi) any dissolution, liquidation or petition for voluntary bankruptcy of the
Company or any member of the Westinghouse Group;
(vii) any merger, consolidation, restructuring, acquisition, disposition or
similar transaction involving the Company or any member of the Westinghouse Group
whose total value exceeds twenty percent (20%) of the then fair market value of the
Westinghouse Groups total consolidated assets;
(viii) the settlement of any Dispute or litigation or assumption of any
obligation or liability with a value in excess of ten million dollars ($10 million)
or more, other than in the ordinary course of business; and
11
(ix) any material changes to the tax or accounting policies of the Company or
the Westinghouse Group.
(g) The Shareholders shall, and shall cause their respective Owner Board Members to, use their
reasonable efforts to provide that ordinary meetings of the Owner Board are held at least once
during each fiscal quarter. In addition, extraordinary meetings of the Owner Board may be held as
necessary. In-person meetings of the Owner Board shall be held in the United States or any such
other places as may be determined by the Owner Board.
(h) Any one or more members of the Owner Board may participate in a meeting of the Owner Board
by means of a conference telephone, video conference or similar communications equipment allowing
all persons participating in the meeting to hear each other at the same time. Participation by
such means shall constitute presence in person at a meeting.
(i) The Owner Board may have an office. The office will serve as the point of contact for
requests related to the Owner Board and notification made by the Owner Board Chairman and will
handle any and all related administrative matters. The office also will serve as the point of
contact for communications or coordination with the Shareholders and for related procedures.
(j) Toshiba US or one or more of its Affiliates may second up to two employees to serve in the
administration of the Owner Boards functions. Each seconded employee will be subject to the
supervision of, and required to comply with the rules of conduct of, the Company and/or the entity
from which he or she was seconded.
(k) The languages for all meetings of the Owner Board shall be English. Translation and
interpretation shall be provided as necessary or appropriate. All minutes and other documents to
be presented to the Owner Board shall be prepared (or, in the case of exhibits, summarized) in
English.
SECTION 3.03
Principal Officers
(a) There shall be a president of the Company (the
President
) who, as provided in Section
3.01(a), shall, to the extent permitted by the DGCL, manage the business and affairs of and
exercise the corporate powers of the Company and shall otherwise have the powers and perform such
duties of management usually vesting in the Chief Executive Officer and/or President of a
corporation. In addition to the President, there shall be a treasurer of the Company (the
"
Treasurer
) and a secretary of the Company (the
Secretary
and, together with the President and
the Treasurer, the
Principal Officers
) who shall each have the powers and perform such duties
usually vesting in a treasurer or secretary, respectively, of a corporation.
12
(b) Toshiba US shall be entitled to nominate the Principal Officers after consulting with
other Shareholders, and each Shareholder agrees that it (i) will cause the Directors nominated by
it to vote for the appointment of such nominees and (ii) will not, and will cause the Directors
nominated by it not to, vote, or grant any consents with respect to, any of its Shares in favor of
the removal of any Principal Officer unless Toshiba US shall have consented to such removal in
writing. Each Shareholder agrees to, and will cause the Directors nominated by it to, cause to be
called, if necessary, a special meeting of the Shareholders of the Company and to vote all of the
Shares directly or indirectly beneficially owned by such Shareholder for, or to take all actions by
written consent in lieu of any such meeting necessary to cause, the removal of any Principal
Officer if Toshiba US requests in a writing, signed by Toshiba US, such Principal Officers removal
for any reason. If, as a result of death, disability, retirement, resignation, removal or
otherwise, the office of any Principal Officer shall be vacant, Toshiba US shall within 30 days of
such event notify the Board in writing of a replacement, and upon such nomination (whether before
or after such 30-day period) all Shareholders shall, and shall cause the Directors nominated by it
to, promptly take all actions necessary to ensure the appointment of such replacement, if
necessary, calling a special meeting of Shareholders and voting their Shares thereat, or executing
any written consent in lieu thereof, in favor of the appointment of such nominee.
(c) The Company may also have, upon appointment by the Board at the request of the President,
such other officers, including, but not limited to, vice presidents, assistant secretaries,
assistant treasurers and other officers, as may be appointed in accordance with the Organizational
Documents and the DGCL.
SECTION 3.04
Organizational Documents
Each Shareholder shall vote its Shares or execute any consents necessary, and shall take all
other actions necessary, to ensure that the Organizational Documents facilitate, and do not at any
time conflict with any provision of, this Agreement or any applicable law, and to ensure that the
provisions hereof are implemented notwithstanding any inconsistent provision in the Organizational
Documents.
SECTION 3.05
Shareholder Actions
(a) Each Shareholder agrees that in the event of any duly called annual or special meeting of
the holders of Shares called for the purpose of voting on the election of directors or any other
matter required to be taken by the holders of Shares, such Shareholder shall appear in person or by
proxy at such meeting for the purpose of obtaining a quorum, and shall vote or cause to be voted
all Shares directly or indirectly beneficially owned by such Shareholder, either in person or by
proxy, at any such meeting in the manner provided pursuant to this Agreement.
13
(b) Notwithstanding the provisions of Section 3.05(a) above, the holders of Shares may take
action by resolution in writing (in one or more counterparts) signed by the holders of a number of
Shares necessary to adopt such resolution, which resolution shall be as valid and effective as if
the same had been passed at a general meeting of the Company duly convened and held in accordance
with Section 228 of the DGCL.
(c) Any one or more holders of Shares may participate in a meeting of the holders of Shares by
means of a conference telephone, video conference or similar communications equipment allowing all
persons participating in the meeting to hear each other at the same time. Participation by such
means shall constitute presence in person at a meeting.
(d) The languages for all meetings of the holders of Shares shall be English. Translation and
interpretation shall be provided by the Company at its cost as necessary or appropriate. All
minutes and other documents to be presented to the holders of Shares shall be prepared (or, in the
case of exhibits, summarized) in English.
SECTION 3.06
Dividend Policy.
(a) Dividends shall be paid if, when and in the amount declared by the Board, subject to the
Organizational Documents and applicable law.
(b) The Shareholders intend that the Company will pay dividends in cash (unless otherwise
agreed among the Shareholders) in an amount such that each Shareholder shall receive at least
$22,222 for each Share per fiscal year (or a corresponding fraction thereof for the first and last
partial fiscal year) as dividends, and a total of $133,332 per each Share over the first twenty
four fiscal quarters from the PSA Closing, subject to applicable law.
(c) To implement the objective of Section 3.06(b), it is the policy of the Company to
distribute as dividends with respect to each fiscal year of the Company a certain percentage (up
to, but in no event, including dividend target shortfall of the UK Acquisition Co. set forth herein
below, exceeding, 100%) of the consolidated net income of the Company and its consolidated
Subsidiaries, as determined in accordance with GAAP as reflected in the consolidated financial
statements of Toshiba for such period, which is available for distribution to Shareholders in
accordance with applicable law (the
Distribution Ratio
) to satisfy the expectation set forth in
Section 3.06(b) above. In any fiscal year, the Distribution Ratio may be reduced to no lower than
65%, subject to applicable law, if no A Accrual (as defined in the Certificate of Incorporation of
the Company) and B Accrual (as defined in the Certificate of Incorporation of the Company) will
exist after distributions for such fiscal year are made. The relative preferences of the Class A
Stock and the Class B Stock shall be as set forth in the Organizational Documents. It is further
the policy of the Company (i) to pay additional dividends to the holders of Class A Shares (other
than Toshiba US or any successor owner of Shares owned by Toshiba US) to the extent the UK
Acquisition Co. does not pay dividends in accordance with its dividend
14
policy with respect to Class A Shares of the UK Acquisition Co. and (ii) to reduce the amount
to be paid in dividends to the holders of Class A Shares (except Toshiba US or any successor owner
of Shares owned by Toshiba US) to the extent the UK Acquisition Co. pays dividends in excess of its
policy with respect to Class A Shares of the UK Acquisition Co., all as described in the
Organizational Documents.
(d) The parties expect that such dividends will be paid on a quarterly basis.
(e) All per share amounts in this Section 3.06 shall be adjusted as appropriate for any stock
splits, reorganization or recapitalization with respect to the Shares of the Company.
(f) The Shareholders will initiate discussion in a timely manner after the Closing and
collectively determine a policy for the distribution of net income in excess of that required to
satisfy the provisions hereof and of the Organizational Documents.
(g) Should any former Shareholder be entitled to receive an unpaid A Accrual (as defined in
the Certificate of Incorporation of the Company) under Article IV, B.3.(c) of the Certificate of
Incorporation of the Company, any other Shareholder which receives distributions from the Company
in violation of that provision shall return such distributions to the former Shareholder.
ARTICLE 4
CERTAIN OPERATIONAL MATTERS
SECTION 4.01
Acquisition of Westinghouse Group
(a) The Shareholders agree that the Company will acquire all the issued and outstanding shares
of BNFL USA Group Inc. in accordance with the PSA, and will cooperate, and cause the respective
Directors nominated by them to cooperate, in all respects reasonably necessary to consummate such
transactions.
(b) Toshiba will act as an agent for the Company with respect to its rights under the PSA;
provided
,
however
, if conflicts arise between Toshiba and any Shareholder regarding
the exercise of any such right, such right will be exercised only after consultation with the Owner
Board (if such conflict involves all Shareholders) or with each affected Shareholder (if such
conflict involves a limited number of Shareholders).
(c) Toshiba will act as an agent for the Company with respect to its obligations under the
PSA;
provided
,
however
, if conflicts arise regarding such obligations, the
obligations will be performed only with the consent of the Owner Board (if such conflict involves
all Shareholders) or of each affected Shareholder (if such conflict involves a limited number of
Shareholders).
15
(d) Benefits received by the Company with respect to the PSA (net of administration fees)
will, to the extent received in cash, be distributed among the Shareholders according to their
respective Ownership Percentage. Expenses (including administration fees) incurred by Toshiba
relating to the performance of the Companys obligations under the PSA shall be reimbursed by the
Westinghouse Group.
SECTION 4.02
Repayment of Loans
The Company will repay in full all loans and advances that were extended by the Sellers (but
not by any member of the Westinghouse Group) to any member of the Westinghouse Group, together with
accrued interest thereon as of PSA Closing, without deduction for any set-off or counterclaim. The
Company will account for such funds as loans to the respective members of the Westinghouse Group,
to be documented with a loan agreement substantially similar to those currently in place between
the members of the Westinghouse Group and their Affiliates.
SECTION 4.03
Annual Budget and Business Plan
(a) The Board shall cause the Westinghouse Group to prepare an annual budget (the
Annual
Budget
) in accordance with a calendar to be set by Toshiba from time to time to schedule the
preparation of an annual budget of Toshiba and its Affiliates (the
Toshiba Budget Calendar
). The
initial Annual Budget shall be prepared, as soon as practicable after the PSA Closing and shall be
promptly delivered thereafter to the Shareholders. The Owner Board shall be responsible for
monitoring the implementation of the Annual Budget at least once every fiscal quarter.
(b) The Board shall cause the Westinghouse Group to prepare a mid-term business plan (the
Business Plan
), which is expected to cover a period of 5 years, in a manner similar to the
preparation of the Annual Budget. The Business Plan shall be promptly delivered to the
Shareholders after it is prepared. The first Business Plan will be based upon the business plan
submitted by Toshiba to Shaw and IHI for their consideration in making their investments in the
Company. The Business Plan will be reviewed and revised, to the extent necessary, not less often
than every three years;
provided
,
that
, the Business Plan will be revised promptly
upon changes in the Company or the business environment that have a material impact on the
Westinghouse Group or the Business Plan. The Owner Board shall be responsible for monitoring the
implementation of the Business Plan not less often than annually.
SECTION 4.04
Shareholder Support of the Westinghouse Group Business
(a) The Shareholders shall (i) cooperate and discuss how to introduce to the Westinghouse
Group business opportunities that will assist it in achieving its goals as reflected in the Annual
Budget and the Business Plan and (ii) reasonably make available to the Company and
16
the Westinghouse Group employees and/or materials that will enable the Westinghouse Group to
achieve such goals.
(b) The Parties intend that the Company and the Westinghouse Group will provide for their own
capital, and no additional capital will be required from the Company or the Shareholders. In the
event that the Company or the Westinghouse Group cannot provide its own capital, the Shareholders
will negotiate in good faith concerning the provision of capital and will provide such necessary
financial support as the Shareholders deem appropriate.
(c) If customers, regulatory agencies, financial institutions or other relevant parties
require any guarantees from the Westinghouse Groups parent company in the ordinary course of
Westinghouse Group business such as those set forth in Schedule B hereto, Toshiba will provide such
guarantees;
provided
,
however
, that Toshiba may refuse to provide such guarantee if
and to the extent the scope of guarantee coverage includes the business of any Shareholder (or in
case of Shaw Sub, Shaw) other than Toshiba and its Affiliates. If Toshiba is required to expend
any cash or otherwise incur a liability in connection with its performance of such guarantee, the
Company or the Westinghouse Group shall reimburse Toshiba for such cash or liability, and Toshiba
shall have no claim against any other Shareholder in respect of any such cash or liability.
(d) The Westinghouse Group will use their own insurance provider;
provided
,
that
Toshiba will use its reasonable efforts to cause its insurance providers to insure the
Westinghouse Group, at the Westinghouse Groups expense, if it would result in a cost saving to the
Westinghouse Group.
(e) Each Shareholder may provide to the Westinghouse Group staff support and other support not
in the ordinary course of business;
provided
,
however
, each Shareholder must
execute a separate contract with the Westinghouse Group for such services; provided further that
such services will be performed for reasonable consideration.
SECTION 4.05
Personnel Matters
(a) Except as set forth in Article 3, all decisions as to staffing and personnel matters
relating to the Company, including recruiting sources, appropriate levels of staffing, the
appropriate mix of professionals and training shall be made by the President.
(b) All Principal Officers and senior vice presidents of WEC shall be nominated by the WEC
Board of Directors based on the designation by the President of the Company. The President of the
Company will notify to the other Shareholders its designations in advance.
(c) At the PSA Closing the board of directors of WEC will be composed of seven (7) directors
and shall be nominated by the sole member of WEC in accordance with the designation by the board of
directors resolution of the Company.
17
SECTION 4.06
Coordination Office
(a) Toshiba shall cause Westinghouse Electric Company LLC (
WEC
) to have a department or
division called the
Coordination Office
. The functions of the Coordination Office will be: (i)
supporting the creation of synergy between the Shareholders businesses and the Westinghouse Group
business; (ii) identifying and developing business opportunities for the Shareholders in the
Westinghouse Group; and (iii) managing day-to-day communication with the Shareholders. The actual
scope of the operation of the Coordination Office shall be determined by Toshiba after the
consultation with the other Shareholders.
(b) The Coordination Office will have a manager (the
Coordination Manager
) who is appointed
or caused to resign by the WEC board of directors based on the request by the President of the
Company.
(c) The Coordination Office will be properly staffed, so that the Coordination Manager may
communicate on a day-to-day basis with the Shareholders. Necessary staff will be sent from WEC
and/or each Shareholder. The number of staff to be sent from each Shareholder and employment
conditions shall be determined by Toshiba US after consultation with the other Shareholders,
provided, however, that each Shareholder may send at least one staff to the Coordination Office
ARTICLE 5
CERTAIN AGREEMENTS AMONG THE COMPANY AND THE SHAREHOLDERS
SECTION 5.01
Confidentiality
(a) Each Shareholder other than Toshiba US agrees to keep confidential, and not to make any
use of nor to disclose to any Person any business, economic, financial or marketing information or
other confidential or proprietary information of the Company, the Westinghouse Group or of the
other Shareholders or any Affiliate thereof, including, without limitation, intellectual property
of a confidential nature (collectively, the
Confidential Information
) (other than disclosure to
such Shareholders Affiliates or such Shareholders or any Affiliates employees, agents, advisors,
or representatives responsible for matters relating to the Company (such Affiliates and each such
Person (but not including any Affiliate of such Shareholder or any other such Person who is an
employee, director, Affiliate or agent of a Competitor of Toshiba or the Westinghouse Group,
regardless of his position with, or relationship to, such Shareholder) being hereinafter referred
to as an
Authorized Representative
) or, in the case of Shaw Sub, disclosure to its actual or
prospective finance parties (provided that Shaw Sub shall not provide any Confidential Information
to any finance party, or any other Person, who is a Competitor of the Westinghouse Group) in
accordance with the terms of (or the implementation of) its financing arrangements for the purchase
of its Shares;
provided
,
that
, prior to any disclosure to
18
any such Authorized Representative or finance party, each Shareholder other than Toshiba US
shall advise such Authorized Representative or finance party of the obligations set forth in this
Section 5.01 and direct such Authorized Representative or finance party to treat such Confidential
Information confidentially). Notwithstanding the foregoing, the following will not constitute
Confidential Information for purposes of this Section 5.01: (i) information that is publicly
known at the time of proposed disclosure by such Shareholder, Authorized Representative or finance
party; (ii) information that is obtained by a Shareholder, Authorized Representative or finance
party from a third party other than the Company, members of the Westinghouse Group or another
Shareholder who, to the knowledge of the Shareholder or the Authorized Representative, is not
disclosing such information in breach of a duty of confidentiality; (iii) information that is
developed by such Shareholder or Authorized Representative independent of any Confidential
Information of the Company, any member of the Westinghouse Group or another Shareholder or (iv)
financial statements and other information required to be disclosed by Shaw pursuant to the
Securities Exchange Act of 1934 and the rules thereunder or required to be disclosed by Toshiba or
IHI under the Securities and Exchange Law of Japan.
(b) In the event that any Shareholder (or any of its Authorized Representatives or any finance
party) other than Toshiba US receives a request to disclose all or any part of the Confidential
Information (by oral questions, interrogatories, requests for information or other processes) or if
any Shareholder (or any public company which Controls such Shareholder) is required to disclose all
or any part of the Confidential Information pursuant to any rule or requirement of the Securities
Exchange Commission or a similar governmental agency, such Shareholder agrees to (i) immediately
notify the Company in writing of the existence, terms and circumstances surrounding such request,
(ii) consult with the Company on the advisability of taking legally available steps to resist or
narrow such request and, upon the request of and at expense of the Company provide reasonable
cooperation with respect to any efforts by the Company to obtain a protective order or other
appropriate remedy, and (iii) if disclosure of such Confidential Information is required, exercise
its reasonable best efforts, at the Companys request and expense, to obtain an order or other
reliable assurance that confidential treatment will be accorded to any portion (or all) of the
disclosed portion of the Confidential Information as the Company so designates. Notwithstanding
the foregoing, after compliance with the immediately preceding sentence, a Shareholder (or any of
its Authorized Representatives or any finance party) may disclose Confidential Information as
required by any governmental authority, provided that it will (i) inform such authority that the
Confidential Information is subject to this Agreement, (ii) furnish a copy of this Agreement to
such authority, (iii) furnish only that portion of the Confidential Information which the
Shareholder believes in good faith, after receiving advice from counsel, it is legally required to
disclose, (iv) exercise its reasonable efforts to obtain reliable assurance that confidential
treatment will be accorded to such Confidential Information, and (v) advise the Company in writing
prior to making such disclosures.
19
(c) The provisions of Section 5.01 (a) and (b) above shall apply
mutatis mutandis
to Toshiba
US if the Confidential Information of Shareholders other than Toshiba US and its Affiliates is
concerned.
(d) Each Shareholder will take adequate security and precautionary measures to effect
compliance with this Section 5.01 by its Authorized Representatives who shall be given access to
Confidential Information as permitted herein and will be responsible for such compliance by such
Persons.
SECTION 5.02
Access
Subject to the confidentiality obligations of each Shareholder and its Authorized
Representatives under Section 5.01, each Shareholder shall have the right, during usual business
hours upon reasonable notice and at such Shareholders expense, to (i) visit the offices of the
Company in order to inspect the books and records of the Company, (ii) inspect the books and
records of the Westinghouse Group, but not at the offices of the Westinghouse Group, and (iii)
discuss the affairs of the Company and the Westinghouse Group with the officers of the Company and
the Westinghouse Group. The Company shall not be required to maintain any books and records for a
period in excess of five years from the date of the making or receipt thereof, unless a Shareholder
reasonably requests that they be maintained for a longer period, except for those records, if any,
required by applicable law to be kept for a longer period.
SECTION 5.03
Financial Statements
(a) The Companys fiscal year shall begin on April 1 and end on March 31 of the following
year. As soon as practicable following the end of each fiscal year of the Company, but in any
event within 75 days after the end of each fiscal year (unless the Company obtains an extension
from the Shareholders, which shall not be unreasonably delayed or withheld), the Company shall
cause to be prepared and furnished to each Shareholder, at the Companys expense, consolidated
financial statements consisting of a balance sheet, profit and loss account and cash flow statement
of the Company and its subsidiaries including financial notes thereto, for such fiscal year, in
each case setting forth comparative figures for the preceding fiscal year (except with respect to
the initial such financial statements, for which a prior period comparison will not be required),
and certified by independent certified public accountants of a Big Four Accounting Firm as to
fairness of presentation, consistency and preparation in accordance with US generally accepted
accounting principles (
GAAP
) audited in accordance with US generally accepted auditing standards.
(b) No later than 40 days following the end of each fiscal quarter (unless the Company obtains
an extension from the Shareholders, which shall not be unreasonably delayed or withheld), the
Company shall cause to be prepared and furnished to each Shareholder, at the Companys expense,
unaudited consolidated financial statements of the Company and its
20
subsidiaries including financial notes thereto, in each case setting forth comparative figures
for the related periods in the prior fiscal year (except with respect to financial statements
provided for the initial four quarters, for which prior period comparisons will not be required)
and certified by the Company as to preparation in accordance with GAAP (except for the absence of
notes thereto).
(c) As soon as practicable following the end of each month, the Company shall cause to be
prepared and furnished to each Shareholder, at the Companys expense, financial statements and
other reports of the Company as and in the format reasonably requested by Toshiba US.
(d) Subject to Section 5.01, at the reasonable request of any Shareholder and at such
Shareholders expense, the Company shall prepare and deliver to each Shareholder, as soon as
reasonably practicable following such request, any additional financial information and statements
as such Shareholder shall from time to time reasonably request in order to prepare such
Shareholders consolidated financial statements and/or exercise its rights and obligations under
this Agreement. The Company shall have no obligation to deliver such information if, and to the
extent that, the collection and/or production of such information would adversely impact the
Companys day-to-day operations; provided, however, that the Company shall have the obligation to
prepare and deliver three years of historical audited and interim unaudited financial information
of the Westinghouse Group prepared in accordance with GAAP and such other financial information as
required to be filed by Shaw with the Securities Exchange Commission. The requesting Shareholder
shall be responsible for any incremental costs or expenses incurred by the Westinghouse Group in
connection with additional information it requests pursuant to this Section 5.03(d).
SECTION 5.04
Public Announcements
The Parties agree to consult with each other before issuing any press release or making any
public statement with respect to the Company or its affairs, except for such releases and
statements issued or made by the Company in the ordinary course of business and, except as may be
required by applicable law, rule or regulation or any listing agreement with any securities
exchange, no Party will issue any such press release or make any such public statement without the
prior approval of the other Parties hereto, which shall not be unreasonably withheld or delayed.
SECTION 5.05
No Inconsistent Actions
Each Shareholder agrees that, except as expressly permitted in or required by this Agreement,
it shall not (a) grant any proxy, or enter into or agree to be bound by any voting trust, with
respect to any Shares, (b) enter into any shareholder agreements or arrangements of any kind with
any Person with respect to any Shares or (c) take any other action which is inconsistent with the
provisions of this Agreement, including, but not limited to, agreements or arrangements
21
with respect to the acquisition, disposition or voting of Shares (but except for any financing
activities of Shaw (
provided
,
however
, that the key terms of such activities shall
be disclosed to Toshiba in advance and reasonably acceptable to Toshiba) and the Put Option
Agreement, or act, for any reason, as a member of a group or in concert with any other Persons in
connection with the acquisition, disposition or voting of Shares in any manner which is
inconsistent with the provisions of this Agreement.
SECTION 5.06
No Apparent Authority
Neither the Company nor any director, officer or employee thereof shall, in such capacity,
have the authority to bind, commit or otherwise obligate any Shareholder (whether in its capacity
as Shareholder or otherwise) or its Affiliates (other than the Company and its Subsidiaries) in any
manner whatsoever.
SECTION 5.07
Undertaking by Shaw Sub
Shaw Sub will not conduct any activities other than activities related to its ownership of the
Class A Shares and the shares of Class A Stock of the UK Acquisition Co., and any financing
activities related thereto.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
Each of the Parties hereby, severally and not jointly, represents and warrants to the other
Parties as follows:
SECTION 6.01
Organization
Such Party is duly organized, validly existing and (where such concept is recognized) in good
standing under the laws of its jurisdiction of organization with all requisite power and authority
to own, operate and lease its properties and to carry on its business as now being conducted.
SECTION 6.02
Authorization, Validity and Enforceability of This Agreement
Such Party has the power and authority to execute, deliver and perform this Agreement, has
taken all necessary action to authorize its execution and delivery of this Agreement and has taken
all necessary corporate action to perform this Agreement and to consummate the transactions
contemplated herein. This Agreement has been duly executed and delivered by such Party and,
assuming valid execution and delivery by the other Parties, constitutes the legal, valid and
binding agreement of such Party, enforceable against it in accordance with its terms.
22
ARTICLE 7
TRANSFER OF SHARES
SECTION 7.01
General Restrictions
(a) Except with the prior written consent of the other Shareholders (in the case of a Transfer
by Toshiba US) or of Toshiba US (in the case of a Transfer by any other Shareholders), no
Shareholder shall Transfer any of its Shares prior to October 1, 2012, except for Permitted
Transfers.
(b) In addition to the restriction on Transfers set forth in Section 7.01(a), no Shareholder
shall Transfer any of its Shares without the prior approval of the Board and the Owner Board,
whether or not such Transfer occurs before, on or after the Exercise Period End Date (as defined in
the Put Option Agreement), except for Permitted Transfers.
(c) As a condition to the effectiveness of any Transfer permitted by this Agreement, the
transferee must deliver a certificate to the Company and the other Shareholders stating that it
agrees to be bound by the terms and conditions of this Agreement in accordance with Section 10.09,
unless the transferee is already a Party.
(d) All Transfers of Shares, including, without limitation, Transfers by encumbrance of
Shares, shall be recorded in the shareholders ledger of the Company.
(e) Upon any Transfer made in accordance with this Article 7, the Shareholders shall make such
amendments to this Agreement as shall be necessary to reflect the addition of a transferee, if
applicable.
SECTION 7.02
Permissible Transfers
Each Shareholder may Transfer, upon receipt of the prior written consent of the other
Shareholders, which consent shall not be unreasonably withheld, all (but not less than all) of its
Shares to any of its Affiliates that such Shareholder Controls;
provided,
however
,
(i) such Shareholder shall pay all costs, taxes and fees associated with such transfer, (ii) any
Affiliate to whom Shares are transferred, prior to such transfer, shall deliver an certificate to
the Company and the other Shareholders stating that it agrees to be bound by the terms and
conditions of this Agreement in accordance with Section 10.09 and the transferring Shareholder
shall be jointly and severally liable with its transferee Affiliates with respect to such
Affiliates performance of this Agreement, (iii) all necessary third party consents and regulatory
approvals with respect to such proposed transfer shall have been obtained and (iv) prior to such
time as such Shareholder no longer Controls such Affiliate, such Shareholder will reacquire the
Shares from such Affiliate.
23
(b) Notwithstanding the restrictions on Transfer set forth in this Article 7, for so long as
Toshiba USs Ownership Percentage exceeds fifty-one percent (51%), Toshiba shall be entitled to
freely transfer its Shares to one or more additional investors;
provided
,
however
,
that (i) such Transfer shall be subject to the restrictions of this Agreement if, immediately
following such Transfer, Toshibas Ownership Percentage would be less than fifty-one percent (51%)
and (ii) all such Transfers shall comply with the provision of Sections 7.01(c), 7.01(d) and
7.01(e). For so long as Shaw Subs Ownership Percentage exceeds fifteen percent (15%), Toshiba US
shall not transfer any Shares pursuant to this Section 7.02(b) to a Person whose scope of business
is substantially similar to that of Shaw, without Shaw Subs prior written consent;
provided
,
however
, that Toshiba US shall not transfer any Shares pursuant to this
Section 7.02(b) to such a Person without Shaw Subs prior written consent if Shaw Subs Ownership
Percentage falls below fifteen percent (15%) solely due to dilution caused by equity offerings of
the Company.
(c) Notwithstanding the restrictions on Transfer set forth in this Article 7, Shaw Sub and IHI
shall be entitled to freely transfer their Shares pursuant to the Put Option Agreements.
SECTION 7.03
Legend on Share Certificates
In addition to any other legend that may be required, each certificate for Shares that is
issued to any holder thereof shall bear a legend in substantially the following form:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER APPLICABLE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD
EXCEPT IN COMPLIANCE THEREWITH. SUCH SHARES ARE ALSO SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE SHAREHOLDERS
AGREEMENT DATED AS OF OCTOBER 4, 2006, AS THE SAME MAY BE AMENDED
FROM TIME TO TIME, COPIES OF WHICH MAY BE OBTAINED UPON REQUEST FROM
THE ISSUER HEREOF.
SECTION 7.04
Rights of First Offer
(a) If, but always subject to the provisions of Section 7.01, any Shareholder proposes to
Transfer any Shares (a
Transferring Shareholder
) other than pursuant to Section 7.02, the
Transferring Shareholder shall, at least 60 days prior to such Transfer, deliver to the other
Shareholders an offer (the
First Offer
) to Transfer such Shares upon the terms set forth in this
Section 7.04. The First Offer shall state (i) the number and type of Shares the Transferring
Shareholder proposes to Transfer (the
First Offer Shares
) and the name of the Transferring
Shareholder, (ii) the name and address of the proposed offeree (if determined) and (iii) the
proposed amount and type of consideration (including, if the consideration consists in whole or
24
in part of non-cash consideration, such information available to the Transferring Shareholder
as may be reasonably necessary for the other Shareholders to properly analyze the economic value
and investment risk of such non-cash consideration) and the terms and conditions of payment of the
proposed Transfer, and shall be accompanied by a written offer from the proposed offeree (if
determined) confirming the terms of the First Offer. The First Offer shall remain open and
irrevocable for a period of sixty (60) days (the
First Offer Acceptance Period
) from the date of
its receipt by the other Shareholders.
(b) Any Shareholder may accept the First Offer and purchase its pro rata portion of the First
Offer Shares (based on the ratio such Shareholders Ownership Percentage bears to the Ownership
Percentages of all Shareholders to which a First Offer Notice was delivered) by delivering to the
Transferring Shareholder a notice of such acceptance in writing within the First Offer Acceptance
Period. If any of the other Shareholders (other than Toshiba US) fails to accept the First Offer,
then Toshiba US shall have the right to accept such portion of the First Offer as is not accepted
by such other Shareholder within 14 days after the expiry of the First Offer Acceptance Period (the
"
Extended First Offer Acceptance Period
). As promptly as practicable after any Shareholders
acceptance of the First Offer, such Shareholder and the Transferring Shareholder shall enter into a
customary purchase agreement for the Transfer of such shares reflecting the terms and conditions
set forth in the First Offer Notice.
(c) If the other Shareholders do not, in the aggregate, purchase all of the First Offered
Shares, then the Transferring Shareholder may, within sixty (60) days after the expiration of the
First Offer Acceptance Period or the Extended First Offer Acceptance Period, as the case may be,
Transfer to the original offeree thereof any or all of the First Offered Shares not purchased by
the other Shareholders on terms and conditions no more favorable to the original offeree thereof
than are described in the First Offer, subject to Section 7.05, if applicable.
(d) The provisions of this Section 7.04 shall not apply to Transfers contemplated by Section
7.05, Section 7.06 and any Permitted Transfer.
SECTION 7.05
Tag-Along Rights
(a) Toshiba US or any transferee thereof hereby agrees that if it wishes to Transfer, in one
transaction or in a series of related transactions, to any third party Shares constituting a
majority of the Shares held by it as of the Closing Date, then the terms and conditions of such
Transfer shall include an offer by the transferee to the other Shareholders (the
Tagging
Shareholders
) to include, at the option of each Tagging Shareholder, in the Transfer to the third
party, all of the Shares beneficially owned by such Tagging Shareholder. If Toshiba US receives a
bona fide offer to Transfer from a third party (a
Tag-Along Offer
), in one transaction or in a
series of related transactions, a majority of the Shares held by it as of the Closing Date which it
desires to accept, Toshiba US shall then cause the Tag-Along Offer to be reduced to writing and
shall provide written notice (the
Tag-Along Notice
) of such Tag-Along Offer to the Tagging
25
Shareholders in the manner set forth in this Section 7.05. The Tag-Along Notice shall contain
an offer by such third party to purchase or otherwise acquire, in addition to the Shares being
acquired from Toshiba US, all of the Shares from the Tagging Shareholders at the same price and on
the same terms and conditions as contained in the Tag-Along Offer and shall be accompanied by a
true and correct copy of the Tag-Along Offer (which shall identify the third party purchaser, the
number of Shares which the third party is seeking to purchase or otherwise acquire with respect to
which the Shareholders other than Toshiba US have not exercised rights of First Offer under Section
7.04, the price contained in the Tag-Along Offer and all the other terms and conditions of the
Tag-Along Offer). Each of the Tagging Shareholders desiring to accept the Tag-Along Offer shall,
within sixty (60) days after the date the Tag-Along Notice is received by such Tagging Shareholder
(the
Tag-Along Notice Period
), deliver a written notice to Toshiba US (the
Tag-Along Exercise
Notice
). In the event such third party purchaser shall modify the Tag-Along Offer in any way,
Toshiba US shall send an amended Tag-Along Notice to the Tagging Shareholders reflecting such
modifications and each Tagging Shareholder shall have until the later of thirty (30) days after the
date such amended Tag-Along Notice is received by the it or the end of the original Tag-Along
Notice Period, to deliver an amended Tag-Along Exercise Notice.
(b) If as of the termination of the Tag-Along Notice Period, any Tagging Shareholder shall not
have accepted the Tag-Along Offer, such Tagging Shareholder shall be deemed to have waived any and
all of its rights under this Section 7.05;
provided,
that
, such sale or disposition
is completed on the terms set forth in the Tag-Along Notice within thirty (30) days after the
termination of the Tag-Along Notice Period.
SECTION 7.06
Call Rights
(a) In the event that any Shareholder other than Toshiba US is or becomes (or there are
reasonable grounds for believing any Shareholder other than Toshiba US is or has become) insolvent,
in liquidation or in voluntary or involuntary reorganization (each, an
Insolvency Event
), any of
the other Shareholders may request valuation of the Company in accordance with Section 7.06(c).
Within ninety (90) days after the determination of the Company Value pursuant to Section 7.06(c),
each Shareholder shall have the right to purchase some or all its pro rata portion of the Shares
owned by the Shareholder triggering the Insolvency Event (the
Insolvent Shareholder
) (such pro
rata portion to be equal to the ratio of such purchasing Shareholders Ownership Percentages to the
Ownership Percentages of all Shareholders other than the Insolvent Shareholder) by delivering to
the Insolvent Shareholder a notice of such acceptance in writing within such period. Each
Shareholder may also exercise the right before the determination of the Company Value pursuant to
Section 7.06(c), and if so such Shareholder may cancel the exercise within thirty (30) days after
such determination. As promptly as practicable after any Shareholders exercise of such right (or
if a Shareholder exercises such right before such determination of the Company Value, after such
determination), such Shareholder
26
and the Insolvent Shareholder shall enter into a customary purchase agreement for the purchase
of such Shares. If one or more of the Shareholders has not indicated a desire to purchase all of
the Shares permitted to be purchased by it pursuant to this Section 7.06(a), then the other
Shareholders who have indicated a desire to purchase Shares in excess of the amounts otherwise
permitted to be purchased by such Shareholder pursuant to this Section 7.06(a) shall be allocated
the right to purchase an additional number of Shares until the entire number of Shares owned by the
Insolvent Shareholder and desired to be so purchased shall have been allocated among the
participating Shareholders.
(b) In the event that Control of any Shareholder (in case of Shaw Sub, including Control of
Shaw) other than Toshiba US is directly or indirectly transferred or conveyed to, or is acquired by
(or there are reasonable grounds for believing it has been), (i) a Competitor of Toshiba or (ii)
any other Person and Toshiba US has not consented to such change in Control (which consent will not
be unreasonably withheld in the case of acquisition by any Person other than a Competitor) (a
CIC
Event
), Toshiba US may request valuation of the Company in accordance with Section 7.06(c).
Within ninety (90) days of the determination of the Company Value pursuant to Section 7.06(c),
Toshiba US shall have the right to purchase all (but not less than all) of the Shares owned by the
Shareholder triggering the CIC Event (the
CIC Shareholder
) by delivering to the CIC Shareholder a
notice of such acceptance in writing within such period. Toshiba US may also exercise the right
before the determination of the Company Value pursuant to Section 7.06(c), and if so Toshiba US may
cancel the exercise within thirty (30) days after such determination. As promptly as practicable
after Toshiba USs exercise of such right (or if Toshiba US exercises such right before such
determination of Company Value, after such determination), Toshiba US and the CIC Shareholder shall
enter into a customary purchase agreement for the purchase of such Shares. The CIC Shareholders
agree not to exercise any of its rights hereunder as well as those as a shareholder pending the
completion of the acquisition by Toshiba of the Shares owned by the CIC Shareholder. For the
avoidance of doubt, CIC Shareholder may not disclose any Confidential Information of the Company,
the Westinghouse Group, and other Shareholders and their respective Affiliates to any third party
including a Person Controlling the CIC Shareholder except in compliance with this Agreement.
(c) Upon the occurrence of an Insolvency Event or a CIC Event, the Shareholders shall seek to
agree upon the fair market value of the Company as of the date of such event determined on a going
concern basis, without minority discount, marketability discount or premium for change of control,
taking into account such considerations as would customarily affect the price at which a willing
seller would sell and a willing buyer would buy in an arms-length transaction (the
Company
Value
). If the Shareholders are unable to agree upon the Company Value within 60 days after the
Insolvency Event or CIC Event, as applicable, then Shareholders holding 1% over the Ownership
Percentage of Toshiba US and its Affiliates at the time of the Insolvency Event or CIC Event (i.e.,
initially Shareholders holding seventy-eight
27
percent (78%)) of the Shares shall appoint an independent investment banking firm of
recognized international standing (the
IB Firm
) reasonably acceptable to each of them to make a
determination of the Company Value. When the IB Firm has been selected, each of the Shareholders
shall be permitted to submit a written submission within 20 days as to the matters such Shareholder
believes are relevant to determination of the Company Value by the IB Firm; copies of the written
submissions of each Shareholder shall be sent to the other Shareholders. The IB Firm shall allow
each Shareholder 10 days in which to comment in writing on the written submissions of the other
Shareholders. Within 45 days thereafter, the IB Firm shall determine the Company Value.
(d) In the event that any Shareholder exercises the put rights set forth in its Put Option
Agreement and the call rights set forth in this Section 7.06 have been, or subsequently are,
exercised with respect to the same Shares, the provisions of such Put Option Agreement shall have
priority.
(e) In no event shall a holder of the Class A Shares have any obligation to sell any Class A
Shares under this Section 7.06 unless all of its Class A Shares are purchased hereunder and all of
such Shareholders (or its Affiliates) Shares of the UK Acquisition Co. are also purchased
concurrently.
ARTICLE 8
ARBITRATION
SECTION 8.01
Arbitration
(a) All disputes, controversies or claims (
Disputes
) arising out of or relating to this
Agreement shall first be settled as far as possible by negotiations between the Parties to the
Dispute, in the form of meetings between senior-management level representatives of such Parties
from their respective nuclear energy businesses, upon the written request (a
Request
) by any such
Party to the other such Parties.
(b) If the Parties to the Dispute are unable to resolve a Dispute within two weeks after
receipt by a Party of a Request, then such Dispute shall be settled as far as possible by
negotiations between the Parties to the Dispute, in the form of meetings of representative officers
(senior vice president or equivalent or above) of such Parties from their respective nuclear energy
business.
(c) If the Parties to the Dispute are unable to resolve a Dispute within four (4) weeks after
receipt by any Party of a Request, then any Party may submit the Dispute to arbitration to be
finally and exclusively resolved under the Arbitration Rules of the International Chamber of
Commerce (
ICC
) then in effect (the
Rules
), except as modified herein. Except as otherwise
28
agreed by the Parties to any such arbitration, any such arbitration shall be conducted by a
number of arbitrators equal to the number of Parties to the Dispute plus one and each of the
Parties to the Dispute shall each select one arbitrator in accordance with the Rules,
provided
,
however
, that if both Toshiba and Toshiba US are the Parties to the
Dispute, they should be considered as one Party for these purposes and they shall be entitled to
select only one arbitrator. The arbitrators so nominated, once confirmed by the International
Court of Arbitration of the ICC (
ICC Court
), shall nominate an additional arbitrator to serve as
chairman, such nomination to be made within 30 days of the confirmation by the ICC Court of the
second arbitrator. If the initial arbitrators shall fail to nominate an additional arbitrator
within said 30-day period, such additional arbitrator shall be appointed by the ICC Court. The
arbitrators shall be required to submit a written statement of their findings and conclusions.
Except as otherwise agreed by the Parties to such Dispute, exclusive venue of arbitration shall be
New York, New York, and the language of the arbitration shall be English and each of the Parties
hereby submits to the non-exclusive jurisdiction of the state and federal courts located in New
York, New York for such purpose and for the enforcement of any arbitral award. By agreeing to
arbitration, the Parties do not intend to deprive any court of its jurisdiction to issue any
pre-arbitral injunction, pre-arbitral attachment or other order in aid of arbitration proceedings.
(d) None of the Parties or the arbitrators shall select any Arbitrator for the arbitral
tribunal who has any interest in the Dispute or who has, or within the immediately preceding five
years has had, any economic or other relationship with any Party to the Dispute.
(e) The award of the arbitrators shall be final and binding upon the Parties, and shall be the
sole and exclusive remedy between and among the Parties regarding any claims, counterclaims,
issues, or accounting presented to the arbitral tribunal. Judgment upon any award may be entered
in any court having jurisdiction thereof.
ARTICLE 9
LIQUIDATION
SECTION 9.01
Liquidation Events
The Company shall commence the winding up and liquidation of its business upon the first to
occur of any of the following (each a
Liquidation Event
):
(i) the sale of all or substantially all of the Companys assets; and
(ii) an affirmative approval of the Board to liquidate or otherwise dissolve or
wind up the Company.
SECTION 9.02
Liquidation Procedures
29
(a) Any work in progress or continuing engagement of the Company at the time of the occurrence
of any Liquidation Event shall be continued thereafter in an orderly fashion consistent with the
winding up of the Company and to the extent practicable shall be conducted thereafter by the
Shareholders outside of the Company.
(b) The proceeds of the liquidation of the Company shall be distributed to the holders of the
Shares in compliance with the provisions and preferences set forth in the Certificate of
Incorporation of the Company.
(c) Upon the occurrence of a Liquidation Event, the Principal Officers shall make or cause to
be made all appropriate filings, notifications and certifications and take all other actions
necessary or desirable in order to effectuate the orderly liquidation of the Company in accordance
with the terms of this Agreement.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01
Amendments; Waivers; Termination
(a) Any provision of this Agreement may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed, in the case of an amendment, by Shareholders representing 1%
over the Ownership Percentage of Toshiba US and its Affiliates at the time of such amendment (i.e.,
initially seventy-eight percent (78%)) of the Ownership Percentages of all Shareholders, or in the
case of a waiver, by the Party against whom the waiver is to be effective. Notwithstanding the
foregoing, if any amendment to this Agreement would adversely affect the rights of a Shareholder
hereunder, such amendment shall require the express written consent of such Shareholder.
(b) No failure or delay by any Party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
(c) This Agreement shall terminate with respect to Shareholders who no longer hold any shares
of capital stock of the Company and such Shareholders shall no longer be party to this Agreement.
SECTION 10.02
Expenses
30
Except as otherwise specifically provided herein, all costs and expenses incurred by a Party
in connection with the execution and delivery of this Agreement shall be paid by the Party
incurring such costs or expenses.
SECTION 10.03
Notices
Any notices and other communications required to be given pursuant to this Agreement shall be
in writing in English and shall be effective upon delivery by hand or upon receipt if sent by mail
(registered or certified mail, postage prepaid) or upon transmission if sent by facsimile (with
request for confirmation of receipt in a manner customary for communications of such respective
type), except that if notice is received after 5:00 p.m., local time, on a Business Day at the
place of receipt, it shall be effective as of the following Business Day. Notices are to be
addressed as follows:
If to Toshiba or Toshiba US or the Company, to:
Toshiba Corporation
Toshiba Building 31B
1-1-1, Shibaura, Minato-ku, Tokyo 105-8001, Japan
Attention: General Manager Legal Affairs Department, Power Systems and Services Company
Facsimile No.: + 81-3-5444-9183
Email: ushio.kawaguchi@toshiba.co.jp
with a copy, which shall not constitute notice, to:
Skadden, Arps, Slate, Meagher & Flom LLP
Izumi Garden Tower 21
st
Floor
1-6-1 Roppongi Minato-ku, Tokyo, 106-6021, Japan
Attention: Mitsuhiro Kamiya, Partner
Facsimile No.: + 81-3-3568-2626
Email: mkamiya@skadden.com
If to Nuclear Energy Holdings, L.L.C., to:
The Shaw Group, Inc.
4171 Essen Lane
Baton Rouge, Louisiana 70809
Attention: Gary Graphia, Secretary and General Counsel
Facsimile No.: + 1-225-925-9146
Email: gary.graphia@shawgrp.com
31
with a copy, which shall not constitute notice, to:
Vinson & Elkins LLP
1001 Fannin Street, Suite 2300
Houston, TX 77002
Attention: David Stone, Partner
Facsimile No.: + 1-713-615-5141
Email: dstone@velaw.com
If to IHI, to:
Ishikawajima-Harima Heavy Industries Co., Ltd.
1, Shin-Nakahara-cho,
Isogo-ku, Yokohama 235-8501, Japan
Attention: Kazuo Watanabe, Associate Director & Division Director, Nuclear Power Division
Facsimile No.: +81-45-759-2524
Email: kazuo_watanabe@ihi.co.jp
with a copy, which shall not constitute notice, to
White & Case LLP / Tokyo Office
19-1, Kandanishiki-cho 1-chome
Chiyoda-ku, Tokyo 101-0054, Japan
Attention: Robert F. Grondine
Facsimile No.: +81-3-3259-0155
Email: rgrondine@whitecase.com
or to such other respective addresses as any Party shall designate to the others by notice in
writing,
provided
that notice of a change of address shall be effective only upon receipt. Any
Person who becomes a Party shall provide its address and fax number to the Company, which shall
promptly provide such information to each other Shareholder.
SECTION 10.04
Governing Law; Severability
This Agreement shall be governed by, and construed in accordance with, the laws of the State
of New York, without giving effect to the principles of conflicts of law thereof (other than
Sections 5-1401 and 5-1402 of the New York General Obligation Law) but except to the extent the
internal laws of the State of Delaware are required to apply. If it shall be determined by an
arbitration tribunal or a court of competent jurisdiction that any provision or wording of this
Agreement shall be invalid or unenforceable, such invalidity or unenforceability shall not
invalidate the entire Agreement, in which case this Agreement shall be construed so as to limit
32
any term or provision so as to make it enforceable or valid within the requirements of New
York law, and, in the event such term or provision cannot be so limited, this Agreement shall be
construed to omit such invalid or unenforceable provisions.
SECTION 10.05
Counterparts
This Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon the same
instrument. Executed counterparts delivered by facsimile or electronically will be considered for
all purposes to be equivalent to the executed original for binding effect.
SECTION 10.06
Entire Agreement
This Agreement contains the entire agreement among the Parties with respect to the subject
matter of this Agreement and supersedes all prior agreements and understandings, both oral and
written, among the Parties with respect to such subject matter, including the Participation
Agreements. No representation, inducement, promise, understanding, condition or warranty not set
forth in this Agreement has been made or relied upon by any Party.
SECTION 10.07
Effectiveness
This Agreement shall become effective subject to and effective upon the Closing and only upon
the execution and delivery hereof by all of the Parties and shall continue in full force and effect
until the dissolution of the Company, except as may be terminated earlier by the Parties; provided,
however, that if the Investment Agreement is terminated prior to the Closing this Agreement shall
also terminate as to such terminated Parties, without any further action by the Parties.
SECTION 10.08
Binding Effect; Benefit
This Agreement shall inure to the benefit of and, subject to Section 10.07, be binding upon
the Parties and their respective heirs, successors, legal representatives and permitted assigns.
Nothing in this Agreement, expressed or implied, is intended to confer on any Person other than the
Parties and their respective heirs, successors, legal representatives and permitted assigns, any
rights, remedies, obligations or liabilities under or by reason of this Agreement.
SECTION 10.09
Assignability
(a) Except as otherwise expressly provided herein, neither this Agreement nor any right or
obligation hereunder may be assigned or delegated in whole or in part by any Party without the
prior written consent of the other Parties, and any such attempted assignment or delegation without
such consent shall be null, void
ab initio
and without effect. Any permitted
33
assignment of this Agreement shall be binding upon and inure to the benefit of the Parties and
their respective successors and permitted assigns. Any Person acquiring Shares who is required by
the terms of this Agreement to become a Party hereto shall execute and deliver to the Company and
the other Shareholders an agreement to be bound by this Agreement and shall thenceforth be a
Shareholder, and any Shareholder who ceases to beneficially own any Shares at all shall cease to
have any rights or obligations hereunder (other than as provided in Sections 3.06, (but only with
respect to the A Accruals, as such term is defined in the Certificate of Incorporation of the
Company), 5.01, 8.01, Article 9 (but only with respect to the A Accruals) and 10.02).
(b) The restrictions in paragraph (a) above shall not apply to collateral assignment by Shaw
Sub in connection with its financing arrangements for the purchase of its Shares; provided that (i)
the terms of any such collateral assignment require that any enforcement thereof shall only be
carried out in conjunction with a transfer to such assignee of the Shares owned by Shaw Sub and
(ii) such assignee must execute an acknowledgement that it shall be bound by the obligations of
Shaw Sub pursuant to this Agreement as a condition to enforcing any rights hereunder.
SECTION 10.10
Headings
Section headings contained in this Agreement are for reference only and are not intended to
describe, interpret, define or limit the scope or intent of this Agreement or any provision hereof.
SECTION 10.11
Survival
The provisions of Sections 5.01, 7.02, 8.01, 10.02, 10.03, 10.04 and 10.13 and of this Section
10.11 shall survive any termination of this Agreement and any dissolution of the Company, together
with the liability of any Party with respect to a breach of any agreement or covenant contained
herein.
SECTION 10.12
Further Assurances
Each Party hereby agrees to execute and deliver all such other and additional instruments and
documents and to do all such other acts and things as may be reasonably necessary more fully to
effectuate this Agreement and carry on the business of the Company contemplated herein.
SECTION 10.13
No Third-Party Beneficiaries
This Agreement is for the benefit of the Parties and is not intended to confer upon any other
Person any rights or remedies hereunder.
34
SECTION 10.14
Specific Performance
Each of the Parties acknowledges and agrees that any breach by it of any provision of this
Agreement would irreparably injure another Party and that money damages would be an inadequate
remedy therefor. Accordingly, each of the Parties agrees that, in addition to any money damages,
the other Parties shall be entitled to one or more injunctions enjoining any such breach and
requiring specific performance of this Agreement and consents to the entry thereof.
SECTION 10.15
Preemptive Rights
(a) With respect to the issuance by the Company of additional Shares (New Shares), all
Shareholders may elect to subscribe for and purchase for the issuance price offered by the Company
a portion of such New Shares sufficient to maintain its current Ownership Percentage.
(b) The Company shall give each Shareholder thirty (30) days written notice before making any
sale or offering of New Shares and shall advise the Shareholder of its rights under this Section
10.15 to participate in such offering. The notice shall describe the price and the terms on which
the Company proposes to sell, transfer or otherwise sell or distribute such New Shares together
with a calculation of the Shareholders Ownership Percentage and the number of shares it would be
allowed to purchase under this section to maintain its Ownership Percentage after such sale was
complete. Each Shareholder then shall have thirty (30) days after the date of the notice to advise
the Company in writing whether the Shareholder will exercise its rights hereunder and to deliver
payment in full for the New Shares it elects to purchase. If a Shareholder fails to deliver
payment for its portion of the New Shares within the requisite time period, the Company shall
proceed with the offering of such New Shares according to the plan described in the notice
delivered to the Shareholder and any Shareholder failing to exercise such rights shall have no
further preemptive purchase rights under this section in connection with the offering.
SECTION 10.16
Limited Recourse to Shaw Sub
(a) Notwithstanding any other provision of this Agreement, the obligations of Shaw Sub
hereunder are limited recourse obligations of Shaw Sub, payable solely from its own assets and only
to the extent of funds available after repayment in full of the Bonds and all other Secured
Obligations. No recourse shall be had to any of the members, shareholders, subscribers, directors,
officers, partners, employees or agents of Shaw Sub or any of their respective successors and
assigns in respect to the obligations of Shaw Sub hereunder or arising in connection herewith.
(b) Each Shareholder agrees not to institute against, or join any other Person in instituting
against, Shaw Sub any bankruptcy, reorganization, arrangement, insolvency, moratorium or
liquidation proceedings or other proceedings under U.S. federal or state
35
bankruptcy or similar laws until at least one year and one day or, if longer, the applicable
preference period then in effect plus one day, after the repayment in full of the Bonds and all
other Secured Obligations.
For the purposes of this Section 10.16:
"
Bonds
means the bonds issued by Shaw Sub on or about the date hereof. Immediately after the
issuance of the Bonds, Shaw Sub shall notify to Toshiba and the Company the amount and interest
rate of the Bonds, provided that Shaw Sub shall be responsible for making the foreign exchange
conversion to yen value transparent to Toshiba and the Company.
"
Secured Obligations
means all amounts owed by Shaw Sub to the secured parties under and in
connection with the Bonds.
36
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
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TOSHIBA CORPORATION
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By:
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Name: Masao Niwano
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Title: Director, Corporate Senior Executive
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Vice President
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TSB NUCLEAR ENGERGY INVESTMENT US INC.
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By:
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Name: Shigenori Shiga
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Title: President
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NUCLEAR ENERGY HOLDINGS, L.L.C.
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By:
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Name: Gary P. Graphia
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Title: Vice President and Secretary
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ISHIKAWAJIMA-HARIMA HEAVY INDUSTRIES CO., LTD.
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By:
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Name: Yasuo Shinohara
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Title: Board Director and Managing Executive
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Officer, President of Energy & Plant Operations
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TOSHIBA NUCLEAR ENERGY HOLDINGS (US) INC.
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By:
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Name: Shigenori Shiga
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Title: President
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SCHEDULE A
List of Permitted Acquisitions or Disposals
Investment for cost reduction in the fuel operation.
(M$)
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Investment Item
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FY2008
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FY2009
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FY2010
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Re-conversion facility
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35.8
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35.8
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35.8
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For regulatory compliance
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22.7
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4.7
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2.5
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Handling and inspection equipment
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25.4
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13.8
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5.7
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Sum
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83.9
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54.3
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44.0
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Note: These investments are not included the investment amount ordinarily made in the fuel
business.
Fulfillment of the condition precedent in the new Shareholders Agreement of PEBBLE BED MODULAR
REACTOR (PROPRIETARY) LIMITED which has been assumed by Westinghouse Electric Company LLC. The
balance of obligation is $10 million as of the date of this Agreement.
Acquisition of the balance of shares of PaR Nuclear Holding Inc. The cost of acquisition is
expected to be $17.2 million in fiscal year 2007.
A-1
SCHEDULE B
BNFL COMMITMENTS
I. Financial Guarantees
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Underlying
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Type and Date
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Governing
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Contract/
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Term of
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Beneficiary
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of Guarantee
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Law
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Obligations
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Guarantee
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Amount *
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Bank One, NA
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Payment Guarantee
Date TBD
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England
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Credit Line for FX
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Unspecified
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USD
50,000,000
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Federal Insurance
Company (Chubb)
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General Agreement
of Indemnity
3/8/99
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Unspecified
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Surety Bonds
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Unspecified
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USD
31,077,838
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JPMorgan Chase
Bank, N.A. as
Administrative Agent
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Payment Guarantee
4/1/05
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New York
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Revolving Credit
Facility
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Facility Expiry
9/08
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USD
600,000,000
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American Insurance
Group
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Deed of Counter-
Indemnity
5/5/03
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England
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Surety Bonds
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Expiry of Last
Bond
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USD
64,891,203
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Bank Brussels
Lambert
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Letter of Undertaking
12/22/00
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Unspecified
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Credit Facility for
Overdrafts,
Advances and
Bank Guarantees
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Unspecified
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EUR
9,915,742
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Commerzbank AG
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Payment Guarantee
3/22/00
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Germany
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Credit Facility for
Overdrafts, FX and
Bank Guarantees
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Facility Expiry
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EUR
16,000,000**
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Deutsche Bank AG
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Payment Guarantee
7/11/03
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Germany
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Credit Facility for
Overdrafts, FX and
Bank Guarantees
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6/30/08
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EUR
16,000,000**
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Skandinaviska
Enskilda Banken AB
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Payment Guarantee
12/4/02
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England
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Credit Line for
Bank Guarantees
Issued to support
Swedish Pension
Plan
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10/31/07
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SEK
25,000,000
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BNP Paribas
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Payment Guarantee
11/26/02
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England
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FX Facility for EdF
Contract
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Unspecified
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EUR
40,000,000
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Bayerische Hypo-
Und Veriensbank
AG
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2/25/05
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England
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FX Facility
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Unspecified
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USD
15,000,000
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*
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Note
: The Amount does not necessarily reflect the current size of BNFLs contingent
liability pursuant to each guarantee. This is difficult to ascertain and is subject to
variation as underlying obligations change. For credit
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B-1
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lines, surety bonds and FX and credit facilities, the Amount is the total amount of such
instrument (whether drawn or undrawn).
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**
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Amount
to be verified.
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II. Transactional Guarantees
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Beneficiary
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Type and Date of Guarantee
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United States Department of
Energy
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Performance
6/15/99
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CBS Corporation (Viacom)
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Amended and Restated ESBU Guarantee 3/22/99 of all
performance obligations
under the ESBU Asset Purchase Agreements 3/22/99
(Joint and Several Obligation with Washington Group
International, Westinghouse Government Services LLC,
Westinghouse Government Environmental Services LLC,
Magnox Electric Ltd., BNFL USA Group Inc., BNFL Nuclear
Services Inc., and BNFL Inc.)
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Ameren Services Company
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Novation of CBS Contracts
8/20/99
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Carolina Power & Light
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Novation of CBS Contracts
2/10/00
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CEZ
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Novation of CBS Contracts
6/28/99
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Duke Energy Corporation
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Novation of CBS Contracts
6/30/00
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Entergy Operations, Inc.
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Novation of CBS Contracts
9/21/99
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Korea Electric Power Corporation
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Novation of CBS Contracts
1/30/00
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New York Power Authority
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Novation of CBS Contracts
1/19/00
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Rochester Gas & Electric
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Novation of CBS Contracts
2/22/00
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South Carolina Electric & Gas
Company
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Novation of CBS Contracts
2/11/00
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Tennessee Valley Authority
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Novation of CBS Contracts
7/7/00
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Barseback Kraft Aktiebolag
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Performance Guarantee in connection with ABB Acquisition
10/27/00
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OKG Aktiebolag
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1. Transfer of ABB contract
10/27/00
2. Transfer of ABB contract
11/5/01
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B-2
EXHIBIT 10.5
SHAREHOLDERS AGREEMENT
dated as of
October 4, 2006
by and among
TOSHIBA CORPORATION
TSB NUCLEAR ENERGY INVESTMENT UK LIMITED,
NUCLEAR ENERGY HOLDINGS, L.L.C.,
ISHIKAWAJIMA-HARIMA HEAVY INDUSTRIES CO., LTD.
and
TOSHIBA NUCLEAR ENERGY HOLDINGS (UK) LIMITED
TABLE OF CONTENTS
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PAGE
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ARTICLE 1
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Definitions
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SECTION 1.01
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Definitions
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2
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ARTICLE 2
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Formation and Purpose of Joint Venture
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SECTION 2.01
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Formation of the Company
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6
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SECTION 2.02
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Purpose and Scope of the Company
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6
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ARTICLE 3
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Corporate Governance; Management
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SECTION 3.01
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The Board
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7
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SECTION 3.02
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The Owner Board
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9
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SECTION 3.03
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Principal Officers
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11
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SECTION 3.04
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Organizational Documents
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12
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SECTION 3.05
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Shareholder Actions
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12
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SECTION 3.06
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Dividend Policy
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12
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ARTICLE 4
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Certain Operational Matters
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SECTION 4.01
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Acquisition of Westinghouse Group
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13
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SECTION 4.02
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Repayment of Loans
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14
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SECTION 4.03
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Annual Budget and Business Plan
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14
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SECTION 4.04
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Shareholder Support of the Westinghouse Group Business
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15
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SECTION 4.05
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Personnel Matters
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15
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SECTION 4.06
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Coordination Office
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15
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ARTICLE 5
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Certain Agreements among the Company and the Shareholders
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SECTION 5.01
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Confidentiality
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16
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SECTION 5.02
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Access
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17
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SECTION 5.03
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Financial Statements
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18
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SECTION 5.04
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Public Announcements
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19
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SECTION 5.05
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No Inconsistent Actions
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19
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i
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PAGE
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SECTION 5.06
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No Apparent Authority
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19
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SECTION 5.07
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Undertaking by Shaw Sub
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19
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ARTICLE 6
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Representations and Warranties
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SECTION 6.01
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Organization
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19
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SECTION 6.02
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Authorization, Validity and Enforceability of This Agreement
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20
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ARTICLE 7
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Transfer of Shares
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SECTION 7.01
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General Restrictions
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20
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SECTION 7.02
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Permissible Transfers
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20
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SECTION 7.03
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Legend on Share Certificates
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21
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SECTION 7.04
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Rights of First Offer
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21
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SECTION 7.05
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Tag-Along Rights
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22
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SECTION 7.06
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Call Rights
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23
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ARTICLE 8
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Arbitration
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SECTION 8.01
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Arbitration
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25
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ARTICLE 9
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Liquidation
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SECTION 9.01
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Liquidation Events
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26
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SECTION 9.02
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Liquidation Procedures
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26
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ARTICLE 10
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Miscellaneous
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SECTION 10.01
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Amendments; Waivers; Termination
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26
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SECTION 10.02
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Expenses
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27
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SECTION 10.03
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Notices
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27
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SECTION 10.04
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Governing Law; Severability
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28
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SECTION 10.05
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Counterparts
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29
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SECTION 10.06
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Entire Agreement
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29
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SECTION 10.07
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Effectiveness
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29
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SECTION 10.08
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Binding Effect; Benefit
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29
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SECTION 10.09
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Assignability
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29
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SECTION 10.10
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Headings
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30
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ii
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PAGE
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SECTION 10.11
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Survival
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30
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SECTION 10.12
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Further Assurances
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30
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SECTION 10.13
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No Third-Party Beneficiaries
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30
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SECTION 10.14
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Specific Performance
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30
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SECTION 10.15
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Preemptive Rights
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30
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SECTION 10.16
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No fetter on Companys powers
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31
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iii
SHAREHOLDERS AGREEMENT
AGREEMENT, dated as of October 4, 2006, among Toshiba Corporation, a corporation organized
under the laws of Japan (
Toshiba
), TSB Nuclear Energy Investment UK Limited, a company registered
in England with registered number 5929658 and a wholly owned Subsidiary (as defined below) of
Toshiba (
Toshiba UK
), Nuclear Energy Holdings, L.L.C., a Delaware limited liability company and a
wholly owned Subsidiary (
Shaw Sub
) of The Shaw Group Inc., a Louisiana corporation (
Shaw
),
Ishikawajima-Harima Heavy Industries Co., Ltd., a corporation organized under the laws of Japan
(
IHI
), and Toshiba Nuclear Energy Holdings (UK) Limited, a company registered in England with
registration number 5929672 (the
Company
).
WHEREAS, Toshiba, on one part, and British Nuclear Fuels PLC and BNFL (Investments US) Ltd.,
on the other part (the
Sellers
), have entered into that certain Purchase and Sale Agreement,
dated as of February 6, 2006 (the
PSA
), pursuant to which Toshiba has agreed to purchase all of
the issued and outstanding shares of BNFL USA Group Inc. and Westinghouse Electric UK Limited
(together with their respective Subsidiaries, the
Westinghouse Group
); and
WHEREAS, Toshiba plans to cause the Company to acquire all of the issued and outstanding
shares of Westinghouse Electric UK Limited and to cause Toshiba Nuclear Energy Holdings (US) Inc.
(
US Acquisition Co.
) to acquire all of the issued and outstanding shares of BNFL USA Group Inc.,
respectively; and
WHEREAS, Toshiba has entered into an Agreement Regarding Participation in an Investment
Program with each of Shaw and IHI (each, the
Participation Agreement
) pursuant to which (i)
Toshiba has agreed to enter into investment agreements with Shaw and Shaw Sub, and with IHI,
respectively (each, the
Investment Agreement
) governing the terms of subscriptions for shares of
the Company and the US Acquisition Co., respectively, (ii) Toshiba, Shaw and IHI have agreed to
enter, and/or cause certain of their Subsidiaries to enter, into this Agreement and a similar
shareholders agreement governing the US Acquisition Co. (the
US Shareholders Agreement
), (iii)
Toshiba and Shaw have agreed to enter into a Commercial Relationship Agreement (the
Commercial
Relationship Agreement
) affording a preferential status to Shaw when the Westinghouse Group
chooses a supplier, and (iv) Toshiba and each of Shaw and IHI have agreed to enter into Put Option
Agreements (each, a
Put Option Agreement
), subject to agreement of final documentation of all the
terms and conditions hereof; and
WHEREAS, following the Closing (as defined herein) under the Investment Agreement: (i) Toshiba
UK will own 364 Ordinary A shares of £1 each in the capital the Company, (the
Class A Shares
)
(representing approximately 53% of the Class A Shares), and 714 Ordinary B shares of £1 each in
the capital of the Company (the
Class B Shares
and, together with the Class A Shares, the
Shares
) (representing 100% of the Class B Shares) which will represent 77% of the aggregate number
of the Shares then outstanding; (ii) Shaw Sub will own 280 Class A Shares (representing
approximately 41% of the Class A Shares and 20% of the aggregate number of the Shares then
outstanding); and (iii) IHI will own 42 Class A Shares (representing
approximately 6% of the Class A Shares and 3% of the aggregate number of the Shares then
outstanding); and
WHEREAS, the parties hereto desire to set forth in this Agreement certain agreements with
respect to the capitalization, management, control, shareholding and certain other matters relating
to the Company;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01
Definitions
The following terms, as used herein, have the following meanings:
Act
means the UK Companies Act 1985 (as amended).
Affiliate
means, with respect to any Person, any other Person directly or indirectly
Controlling, Controlled by, or under common Control with, such Person. It is acknowledged that
after the date of this Agreement, Persons who are not presently Affiliates of a Party may become
Affiliates of such Party, and Persons who are presently Affiliates of a Party may cease to be
Affiliates of such Party.
Agreement
means this Shareholders Agreement.
Annual Budget
has the meaning set forth in Section 4.03(a).
Authorized Representative
has the meaning set forth in Section 5.01(a).
Big Four Accounting Firm
means any of (i) Deloitte & Touche LLP, (ii) Ernst & Young LLP,
(iii) KPMG or (iv) PricewaterhouseCoopers LLP or, in each case, any successor thereto.
Board
means the board of directors of the Company.
Business Day
means, with respect to any place, any day except a Saturday, Sunday or other
day on which commercial banks in that place are authorized by law to close.
Business Plan
has the meaning set forth in Section 4.03(b).
Chairman
means the Chairman of the Board, who shall have the authority and responsibilities
set forth in this Agreement.
CIC Event
has the meaning set forth in Section 7.06(b).
CIC Shareholder
has the meaning set forth in Section 7.06(b).
2
Class A Shares
has the meaning set forth in the recitals.
Class B Shares
has the meaning set forth in the recitals.
Closing
means the closing of the transactions contemplated by the Investment Agreements.
Closing Date
means the date on which the Closing occurs.
Commercial Relationship Agreement
has the meaning set forth in the recitals.
Company
has the meaning set forth in the recitals.
Company Value
has the meaning set forth in Section 7.06(c).
Competitor
means any Person who, by itself or through or together with any of its
Subsidiaries, is substantially engaged in the provision of nuclear power plant technology and/or
nuclear fuel supply.
Confidential Information
has the meaning set forth in Section 5.01(a).
Control
of any Person (including the terms Controlling, Controlled by and under common
Control with) means the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such Person, whether through the ownership of a
majority of the voting securities, by contract or otherwise; provided, however, that when
securities representing at least one-third of the voting rights at a shareholders meeting of any
Person are acquired by a Competitor, Control of such Person shall be deemed changed for the purpose
of this Agreement, unless such Person effectively proves such acquirer doesnt have the power
described herein.
Coordination Manager
has the meaning set forth in Section 4.06(b).
Coordination Office
has the meaning set forth in Section 4.06(a).
Director
means a member of the Board.
Equity Security
means, with respect to any Person, any stock or other ownership interest
having ordinary voting power to elect directors of, or other persons performing similar functions
with respect to, such Person, or any security convertible into, exercisable for or exchangeable for
such stock or other ownership interest.
Exercise Period End Date
has the meaning set forth in Section 7.01(b).
Extended First Offer Acceptance Period
has the meaning set forth in Section 7.04(b).
First Offer
has the meaning set forth in Section 7.04(a).
First Offer Acceptance Period
has the meaning set forth in Section 7.04(a).
3
First Offer Shares
has the meaning set forth in Section 7.04(a).
GAAP
has the meaning set forth in Section 5.03(a).
IB Firm
has the meaning set forth in Section 7.06(c).
IHI
has the meaning set forth in the recitals.
Insolvency Event
has the meaning set forth in Section 7.06(a).
Insolvent Shareholder
has the meaning set forth in Section 7.06(a).
Investment Agreement
has the meaning set forth in the recitals.
Liquidation Event
has the meaning set forth in Section 9.01.
Material Adv
e
rse Effect
means, with respect to a Party, a material adverse effect on the
condition (financial or otherwise), business, assets, results of operations or prospects
(considered on a consolidated basis) of such Party.
Organizational Documents
means, collectively, the Memorandum and Articles of Association of
the Company in effect on the Closing Date, as each may be amended, modified or supplemented from
time to time.
Owner Board
has the meaning set forth in Section 3.02(a).
Owner Board Chairman
has the meaning set forth in Section 3.02(b).
Owner Board Members
has the meaning set forth in Section 3.02(b).
Ownership Percentage
means, with respect to any Shareholder at any time, the percentage
derived by multiplying 100 times a fraction, the numerator of which is the total number of Shares
directly or indirectly beneficially owned by such Shareholder at such time and the denominator of
which is the aggregate number of Shares outstanding at such time.
PSA
has the meaning set forth in the recitals.
PSA Closing
means the closing of the transactions contemplated by the PSA.
Participation Agreement
has the meaning set forth in the recitals.
Party
means each of Toshiba, Toshiba UK, Shaw Sub, IHI and the Company, and any other Person
who becomes a party to this Agreement as amended, supplemented or otherwise modified from time to
time.
Permitted Transfer
means (i) a pledge of Shares by Shaw Sub in connection with financing
arrangements for the purchase of its Shares (
provided
,
however
, that the key terms
of such arrangements shall be disclosed to Toshiba in advance and reasonably acceptable to
4
Toshiba), (ii) the Transfer of Shares by Shaw Sub pursuant to the provisions of its Put
Agreement, (iii) the Transfer of Shares by IHI pursuant to the provisions of its Put Agreement, and
(iv) any Transfer of Shares pursuant to Sections 7.02, 7.04, 7.05 or 7.06.
Person
means an individual, corporation, partnership, limited liability company,
association, trust or other entity or organization, including a government or political subdivision
or an agency or instrumentality thereof.
President
has the meaning set forth in Section 3.03(a).
Principal Officer
means each of the President, the Treasurer and the Secretary.
Put Option Agreement
has the meaning set forth in the recitals.
Put Period
means the period commencing on the Closing Date and ending on the date that is
thirty days after the receipt by the Shareholders of the consolidated financial statements
(prepared in accordance with GAAP) of the Company and US Acquisition Co. for the period ending
September 30, 2012.
Secretary
has the meaning set forth in Section 3.03(a).
Sellers
has the meaning set forth in the recitals.
Shareholder
means each Person (other than the Company, Toshiba and Shaw) who shall be a
Party, whether pursuant to the execution and delivery hereof as of the date hereof, or pursuant to
Article 7 or Section 10.09, so long as such Person shall directly or indirectly beneficially own
any Shares.
Shares
has the meaning set forth in the recitals.
Shaw
has the meaning set forth in the recitals.
Shaw Sub
has the meaning set forth in the recitals.
Subsidiary
means, with respect to any Person, (i) any corporation of which the outstanding
stock having at least a majority of votes entitled to be cast in the election of directors under
ordinary circumstances shall at the time be owned, directly or indirectly, by such Person or by
such Person and a Subsidiary or Subsidiaries of such Person or by a Subsidiary or Subsidiaries of
such Person or (ii) any other Person (other than a corporation) of which at least a majority of
voting interests under ordinary circumstances shall at the time be owned or Controlled, directly or
indirectly, by such Person or by such Person and a Subsidiary or Subsidiaries of such Person or by
a Subsidiary or Subsidiaries of such Person.
Tag-Along Exercise Notice
has the meaning set forth in Section 7.05(a).
Tag-Along Notice
has the meaning set forth in Section 7.05(a).
Tag-Along Notice Period
has the meaning set forth in Section 7.05(a).
5
Tag-Along Offer
has the meaning set forth in Section 7.05(a).
Tagging Shareholders
has the meaning set forth in Section 7.05(a).
Toshiba
has the meaning set forth in the recitals.
Toshiba Budget Calendar
has the meaning set forth in Section 4.03(a).
Toshiba UK
has the meaning set forth in the recitals.
Transfer
means to, directly or indirectly, sell, transfer, assign, pledge, encumber,
hypothecate or otherwise dispose of Shares, either voluntarily or involuntarily and with or without
consideration.
Transferring Shareholder
has the meaning set forth in Section 7.04(a).
Treasurer
has the meaning set forth in Section 3.03(a).
US Acquisition Co.
has the meaning set forth in the recitals.
US Shareholders Agreement
has the meaning set forth in the recitals.
U.S. Dollars
,
US$
and
$
means the lawful currency of the United States of America.
WEC
has the meaning set forth in Section 4.06(a).
Westinghouse Group
has the meaning set forth in the recitals.
ARTICLE 2
FORMATION AND PURPOSE OF JOINT VENTURE
SECTION 2.01
Formation of the Company
The Company has been formed by Toshiba through Toshiba UK in connection with its agreement to
acquire the Westinghouse Group pursuant to the PSA.
SECTION 2.02
Purpose and Scope of the Company
(a) The purpose and scope of the Company is to, together with the US Acquisition Co., own the
entities comprising, and oversee the activities of, the Westinghouse Group.
(b) The Shareholders understand and acknowledge that the entities comprising the Westinghouse
Group will be consolidated Subsidiaries of Toshiba following the PSA Closing.
6
ARTICLE 3
CORPORATE GOVERNANCE; MANAGEMENT
SECTION 3.01
The Board
(a) In accordance with the provisions of the Organizational Documents, the business and
affairs of the Company shall be managed by and corporate powers shall be exercised by or under the
direction of the Board solely to the extent required by applicable law or as set forth herein. To
the extent not so required, the business and affairs of the Company shall be managed by and
corporate powers shall, insofar as possible by applicable law, be exercised by or under the
direction of the President.
(b) The initial Board shall consist of three members, two of whom shall be nominated by
Toshiba UK, and one of whom shall be nominated by Shaw Sub. In the event that a Person acquires
Shares and such Persons Ownership Percentage exceeds 10%, then such Person shall be entitled to
nominate one Director and the total number of the Directors shall increase by such number (subject
to the Organizational Documents); provided, however, that Toshiba UK shall have the right to
nominate such number of the Directors as represents at least a majority of the members of the Board
so long as Toshiba UKs Ownership Percentage is 51% or more. If at any time the Ownership
Percentage of Shaw Sub is less than 10%, Shaw Sub shall lose the right to nominate one Director and
promptly cause the Director nominated by it to resign from the Board and waive any claims that he
would otherwise have against the Company as a result of such resignation and the number of
Directors will be immediately reduced by such number. Each Shareholder agrees that it will vote
its Shares or execute consents, as the case may be, and take all other necessary action (including,
if necessary, causing the Company to call a meeting of Shareholders) in order to ensure that the
composition of the Board is at all times as set forth in this Section 3.01 and that the nominees
provided herein are elected to the Board. The members of the Board shall be the same as those of
the US Acquisition Co.s Board.
(c) Each Shareholder agrees that it will not vote, or grant any consent with respect to, any
of its Shares in favor of the removal from the Board of any Director elected at the request of the
other Shareholders unless the Shareholder entitled to nominate such Director shall have consented
to such removal in writing. Each Shareholder agrees to cause to be called, if necessary, a meeting
of the Shareholders of the Company and to vote all of the Shares directly or indirectly
beneficially owned by such Shareholder for, or to take all actions by written consent in lieu of
any such meeting necessary to cause, the removal of any Director from the Board if the Shareholder
which nominated such Director requests in a writing, signed by such Shareholder, such Directors
removal for any reason.
(d) If, as a result of death, disability, retirement, resignation, removal or otherwise, there
shall exist or occur any vacancy on the Board with respect to any Director, the Shareholder who
nominated such Director in accordance with Section 3.01(b) shall within 30 days of such event
notify the Board in writing of a replacement Director, and upon any such nomination (whether before
or after such 30-day period) all Shareholders shall promptly take all actions necessary to ensure
the election to the Board of such replacement Director to fill the unexpired term of the Director
whom such new Director is replacing, including, if necessary, calling a
7
meeting of Shareholders and voting their Shares thereat, or executing any written consent in
lieu thereof, in favor of the election of such Director.
(e) Meetings of the Board and general Shareholder meetings shall be presided over by the
President. One of the two Directors nominated by Toshiba UK shall be the President. One-third of
the members of the Board then in office, provided such number includes at least one Director
nominated by Toshiba UK, shall constitute a quorum for the transaction of business at any meeting
of the Board, and all actions of the Board shall require the affirmative approval of at least a
majority of the votes of the Board to be cast at the relevant Board meeting. Each Director present
at a meeting of the Board or any committee thereof shall have a number of votes at such a meeting
equal to (a) the Ownership Percentage of all classes of stock of the Company, considered as a
single class, owned by the Shareholder which nominated such Director for election to the Board,
divided by (b) the number of Directors so nominated by such Shareholder who are present at such
meeting. (By way of illustration, based on the Ownership Percentages as of the Closing Date, the
Director nominated by Shaw would have 20 votes while the Directors nominated by Toshiba UK who
actually attend the meeting would collectively have 77 votes in the aggregate. As for Toshiba UK
nominated Directors, if two of them attend, then each would have 38.5 votes; if only one attends,
he would have 77 votes.) In the event there is a vacancy on the Board and an individual has been
nominated to fill such vacancy, the first order of business at any meeting held during such time
shall be to fill such vacancy.
(f) Any one or more members of the Board may participate in a meeting of the Board by means of
a conference telephone, video conference or similar communications equipment allowing all persons
participating in the meeting to hear each other at the same time. Participation by such means
shall constitute presence in person at a meeting and directors so participating shall count towards
a quorum for such meeting.
(g) Unless otherwise prohibited by law, any action required or permitted to be taken by the
Board may be taken without a meeting if all members of the Board consent in writing to the adoption
of a resolution authorizing the action. The resolution and the written consents thereto by the
members of the Board shall be filed with the minutes of proceedings of the Board.
(h) The languages for all meetings of the Board shall be English. Translation and
interpretation shall be provided as necessary or appropriate. All minutes and other documents to
be presented to the Board shall be prepared (or, in the case of exhibits, summarized) in English.
(i) Notice of any meetings of the Board stating the place, date and hour of the meeting shall
be given not less than five (5) business days before the date of the meeting unless otherwise
agreed by all directors.
(j) Any Shareholder who does not have a right under this Agreement to nominate a member of the
Board shall have the right to designate an observer who may attend and monitor meetings of the
Board, but who shall have no voting rights.
(k) Without prejudice to Section 3.02, the Board may establish any sub-committee and delegate
decision-making authority thereto as it shall in its absolute discretion determine.
8
SECTION 3.02
The Owner Board
(a) There shall be constituted an advisory committee for the Board and the President
(the
Owner Board
) which shall, pursuant to authorization by the Board and to the extent
permitted by the Act, have the following functions and responsibilities:
(i) to advise as to the administration and supervision of matters regarding the
Westinghouse Group;
(ii) to advise as to the resolution of any matters relating to the Company and
brought to it which may have a Material Adverse Effect on any Shareholder;
(iii) to provide the Board and/or the President with general and universal
advice and supervision for the business supervision of the Westinghouse Group; and
(iv) to do such other functions and responsibilities as may be assigned by the
Board.
The Board and the President shall duly consider any opinion or recommendation made by
the Owner Board.
(b) All costs and expenses associated with the administration of the Owner Board shall be
borne by the Company.
(c) The Owner Board shall initially consist of three voting members (the
Owner Board
Members
) and the Chairman of the Owner Board (the
Owner Board Chairman
),
provided
,
however
, that the number of the voting members shall increase on a one-by-one basis if the
number of Shareholders increases. Each Shareholder (for the avoidance of doubt, including Toshiba
UK) shall be entitled to appoint one Owner Board Member (who need not be a Director) by notifying
the Board in writing, and the President (as nominated by Toshiba UK in accordance with Section
3.03(a)) shall serve as the Owner Board Chairman.
(d) If, as a result of death, disability, retirement, resignation, removal or otherwise, there
shall exist or occur any vacancy on the Owner Board, the Shareholder who appointed such Owner Board
Member shall within 30 days of such event notify the Board in writing of a replacement Owner Board
Member.
(e) Meetings of the Owner Board shall be presided over by the Owner Board Chairman or, in the
absence of the Owner Board Chairman, the Owner Board Member nominated by Toshiba UK, in which case
the Owner Board Member appointed by Toshiba UK shall still be entitled to exercise his votes
notwithstanding that he presides over such meeting. Members of the Owner Board representing a
majority of votes to be cast, plus at least attendance of two Owner Board Members, one of whom
shall be an Owner Board Member nominated by a Party other than Toshiba UK, shall constitute a
quorum for the transaction of business at any meeting of the Owner Board. Notice of any meetings
of the Owner Board stating the place, date
9
and hour of the meeting shall be given not less than five (5) business days before the date of
the meeting unless all of the Owner Board Members agree otherwise.
(f) Each Owner Board Member present at a meeting or acting by written consent (other than the
Owner Board Chairman) (shall have a number of votes corresponding to the Ownership Percentage of
the Shareholder appointing such Owner Board Member;
provided
,
however
, that the
Owner Board Chairman shall have no voting rights. Except as provided in the immediately following
sentence, all actions of the Owner Board shall require the affirmative approval of at least a
majority of the votes entitled to be cast at meetings of the Owner Board. Notwithstanding the
foregoing, none of the following specified actions may be taken by the Company, the Board, the
Owner Board or any member of the Westinghouse Group without the vote of Owner Board Members holding
voting rights at least 1% in excess of the Ownership Percentage of Toshiba UK and any Affiliate
thereof at the time the vote is taken (i.e., initially, seventy-eight percent (78%)):
(i) the issuance of any Equity Securities of the Company to any Person, other
than pro rata issuances of Equity Securities to the Shareholders;
(ii) the issuance by the Company of any Class A Shares, Class B Shares or any
other Equity Securities which have dividend preferences;
(iii) the issuance of any Equity Securities in any member of the Westinghouse
Group to any Person other than to members of the Westinghouse Group, which will
result in the change of Control of such member;
(iv) the acquisition or disposition by any member of the Westinghouse Group of
assets or property with a value in excess of ten million dollars ($10 million),
other than in the ordinary course of business or the one already described in
Schedule A attached hereto or the relevant Annual Budget;
(v) the incurrence by any member of the Westinghouse Group of indebtedness for
borrowed money in the amount of ten million dollars ($10 million) or more, other
than in the ordinary course of business or the one guaranteed by Toshiba or the one
already described in the relevant Annual Budget;
(vi) any dissolution, liquidation or petition for voluntary bankruptcy of the
Company or any member of the Westinghouse Group;
(vii) any merger, consolidation, restructuring, acquisition, disposition or
similar transaction involving the Company or any member of the Westinghouse Group
whose total value exceeds twenty percent (20%) of the then fair market value of the
Westinghouse Groups total consolidated assets;
(viii) the settlement of any Dispute or litigation or assumption of any
obligation or liability with a value in excess of ten million dollars ($10 million)
or more, other than in the ordinary course of business; and
10
(ix) any material changes to the tax or accounting policies of the Company or
the Westinghouse Group.
(g) The Shareholders shall, and shall cause their respective Owner Board Members to, use their
reasonable efforts to provide that ordinary meetings of the Owner Board are held at least once
during each fiscal quarter. In addition, extraordinary meetings of the Owner Board may be held as
necessary. In-person meetings of the Owner Board shall be held in the United States or any such
other places as may be determined by the Owner Board.
(h) Any one or more members of the Owner Board may participate in a meeting of the Owner Board
by means of a conference telephone, video conference or similar communications equipment allowing
all persons participating in the meeting to hear each other at the same time. Participation by
such means shall constitute presence in person at a meeting and persons so participating shall
count towards a quorum.
(i) The Owner Board may have an office. The office will serve as the point of contact for
requests related to the Owner Board and notification made by the Owner Board Chairman and will
handle any and all related administrative matters. The office also will serve as the point of
contact for communications or coordination with the Shareholders and for related procedures.
(j) Toshiba UK or one or more of its Affiliates may second up to two employees to serve in the
administration of the Owner Boards functions. Each seconded employee will be subject to the
supervision of, and required to comply with the rules of conduct of, the Company and/or the entity
from which he or she was seconded.
(k) The languages for all meetings of the Owner Board shall be English. Translation and
interpretation shall be provided as necessary or appropriate. All minutes and other documents to
be presented to the Owner Board shall be prepared (or, in the case of exhibits, summarized) in
English.
SECTION 3.03
Principal Officers
(a) There shall be a president of the Company as provided for in Section 3.01(e) (the
President
) who, as provided in Section 3.01(a), shall, to the extent permitted by the Act, manage
the business and affairs of the Company and shall otherwise have the powers and perform such duties
of management usually vesting in the Chief Executive Officer and/or President of a company. In
addition to the President, there shall be a treasurer of the Company (the
Treasurer
), who may or
may not be a Director, and a secretary of the Company (the
Secretary
and, together with the
President and the Treasurer, the
Principal Officers
) who shall each have the powers and perform
such duties usually vesting in a treasurer or secretary, respectively, of a company.
(b) Toshiba UK shall be entitled to nominate the Principal Officers after consulting with
other Shareholders, and each Shareholder agrees that it will (i) cause the Directors nominated by
it to vote in favor of the appointment of such nominees, (ii) cause the Directors nominated by it
not to vote in favor of the removal of any Principal Officer unless Toshiba UK
11
shall have consented to such removal in writing and (iii) cause the Directors nominated by it
to vote in favor of the removal of any Principal Officer if Toshiba UK requests it to do so for any
reason in a signed, written request. If, as a result of death, disability, retirement,
resignation, removal or otherwise, the office of any Principal Officer shall be vacant, Toshiba UK
shall within 30 days of such event notify the Board in writing of its nomination for a replacement,
and upon such receipt of such notice (whether before or after such 30-day period) each Shareholder
shall cause the Directors nominated by it to promptly take all actions necessary to ensure the
appointment of such replacement.
(c) The Company may also have, upon appointment by the Board at the request of the President,
such other officers, including, but not limited to, vice presidents, assistant secretaries,
assistant treasurers and other officers, as may be appointed in accordance with the Organizational
Documents and the Act.
SECTION 3.04
Organizational Documents
Each Shareholder shall vote its Shares or execute any consents necessary, and shall take all
other actions necessary, to ensure that the Organizational Documents facilitate, and do not at any
time conflict with any provision of, this Agreement or any applicable law, and to ensure that the
provisions hereof are implemented notwithstanding any inconsistent provision in the Organizational
Documents.
SECTION 3.05
Shareholder Actions
(a) Each Shareholder agrees that in the event of any duly called annual or extraordinary
meeting of the holders of Shares called for the purpose of voting on the election of directors or
any other matter required to be taken by the holders of Shares, such Shareholder shall appear in
person or by proxy at such meeting for the purpose of obtaining a quorum, and shall vote or cause
to be voted all Shares directly or indirectly beneficially owned by such Shareholder, either in
person or by proxy, at any such meeting in the manner provided pursuant to this Agreement.
(b) Any one or more holders of Shares may participate in a meeting of the holders of Shares by
means of a conference telephone, video conference or similar communications equipment allowing all
persons participating in the meeting to hear each other at the same time. Participation by such
means shall constitute presence in person at a meeting.
(c) The languages for all meetings of the holders of Shares shall be English. Translation and
interpretation shall be provided by the Company at its cost as necessary or appropriate. All
minutes and other documents to be presented to the holders of Shares shall be prepared (or, in the
case of exhibits, summarized) in English.
SECTION 3.06
Dividend Policy.
(a) Dividends shall be paid if, when and in the amount declared by the Board, subject to the
Organizational Documents and applicable law.
12
(b) The Shareholders intend that the Company will pay dividends in cash (unless otherwise
agreed among the Shareholders) in an amount such that each Shareholder shall receive at least
$22,222 for each Share per fiscal year (or a corresponding fraction thereof for the first and last
partial fiscal year) as dividends, and a total of $133,332 per each Share over the first twenty
four fiscal quarters from the PSA Closing, subject to applicable law.
(c) To implement the objective of Section 3.06(b), it is the policy of the Company to
distribute as dividends with respect to each fiscal year of the Company a certain percentage (up
to, but in no event, including dividend target shortfall of the US Acquisition Co. set forth herein
below, exceeding, 100%) of the consolidated net income of the Company and its consolidated
Subsidiaries, as determined in accordance with GAAP as reflected in the consolidated financial
statements of Toshiba for such period, which is available for distribution to Shareholders in
accordance with applicable law (the
Distribution Ratio
) to satisfy the expectation set forth in
Section 3.06(b) above. In any fiscal year, the Distribution Ratio may be reduced to no lower than
65% (subject to applicable law) if no A Accrual (as defined in the Memorandum and Articles of
Association of the Company) and B Accrual (as defined in the Memorandum and Articles of Association
of the Company) will exist after distributions for such fiscal year are made. The relative
preferences of the Class A Shares and the Class B Shares shall be as set forth in the
Organizational Documents. It is further the policy of the Company (i) to pay additional dividends
to the holders of Class A Shares (other than Toshiba UK or any successor owner of Shares owned by
Toshiba UK) to the extent US Acquisition Co. does not pay dividends in accordance with its dividend
policy with respect to Class A Shares of the US Acquisition Co. and (ii) to reduce the amount to be
paid in dividends to the holders of Class A Shares (except Toshiba UK or any successor owner of
Shares owned by Toshiba UK) to the extent US Acquisition Co. pays dividends in excess of its policy
with respect to Class A Shares of the US Acquisition Co., all as described in the Organizational
Documents.
(d) The parties expect that such dividends will be paid on a quarterly basis.
(e) All per share amounts in this Section 3.06 shall be adjusted as appropriate for any stock
splits, reorganization or recapitalization with respect to the Shares of the Company.
(f) The Shareholders will initiate discussion in a timely manner after the Closing and
collectively determine a policy for the distribution of net income in excess of that required to
satisfy the provisions hereof and of the Organizational Documents.
(g) Should any former Shareholder be entitled to receive an unpaid A Accrual (as defined in
the Memorandum and Articles of Association of the Company) under Article IV. B. 3.(c) of the
Memorandum and Articles of the Company, any other Shareholder which receives distributions from the
Company in violation of that provision shall return such distributions to the former Shareholder.
ARTICLE 4
CERTAIN OPERATIONAL MATTERS
SECTION 4.01
Acquisition of Westinghouse Group
13
(a) The Shareholders agree that the Company will acquire all the issued and outstanding shares
of Westinghouse Electric UK Limited. in accordance with the PSA, and will cooperate, and cause the
respective Directors nominated by them to cooperate, in all respects reasonably necessary to
consummate such transactions.
(b) Toshiba will act as an agent for the Company with respect to its rights under the PSA;
provided
,
however
, if conflicts arise between Toshiba and any Shareholder regarding
the exercise of any such right, such right will be exercised only after consultation with the Owner
Board (if such conflict involves all Shareholders) or with each affected Shareholder (if such
conflict involves a limited number of Shareholders).
(c) Toshiba will act as an agent for the Company with respect to its obligations under the
PSA;
provided
,
however
, if conflicts arise regarding such obligations, the
obligations will be performed only with the consent of the Owner Board (if such conflict involves
all Shareholders) or of each affected Shareholder (if such conflict involves a limited number of
Shareholders).
(d) Benefits received by the Company with respect to the PSA (net of administration fees)
will, to the extent received in cash, be distributed among the Shareholders according to their
respective Ownership Percentage.
SECTION 4.02
Repayment of Loans
The Company will repay in full all loans and advances that were extended by the Sellers (but
not by any member of the Westinghouse Group) to any member of the Westinghouse Group, together with
accrued interest thereon as of PSA Closing, without deduction for any set-off or counterclaim. The
Company will account for such funds as loans to the respective members of the Westinghouse Group,
to be documented with a loan agreement substantially similar to those currently in place between
the members of the Westinghouse Group and their Affiliates.
SECTION 4.03
Annual Budget and Business Plan
(a) The Board, together with the board of the US Acquisition Co. shall cause the Westinghouse
Group to prepare an annual budget (the
Annual Budget
) in accordance with a calendar to be set by
Toshiba from time to time to schedule the preparation of an annual budget of Toshiba and its
Affiliates (the
Toshiba Budget Calendar
). The initial Annual Budget shall be prepared, as soon
as practicable after the PSA Closing and shall be promptly delivered thereafter to the
Shareholders. The Owner Board shall be responsible for monitoring the implementation of the Annual
Budget at least once every fiscal quarter.
(b) The Board shall cause the Westinghouse Group to prepare a mid-term business plan (the
Business Plan
), which is expected to cover a period of 5 years, in a manner similar to the
preparation of the Annual Budget. The Business Plan shall be promptly delivered to the
Shareholders after it is prepared. The first Business Plan will be based upon the business plan
submitted by Toshiba to Shaw and IHI for their consideration in making their investments in the
Company. The Business Plan will be reviewed and revised, to the extent necessary, not less often
than every three years;
provided
,
that
, the Business Plan will be revised promptly
upon changes in the Company or the business environment that have a material impact on the
14
Westinghouse Group or the Business Plan. The Owner Board shall be responsible for monitoring
the implementation of the Business Plan not less often than annually.
SECTION 4.04
Shareholder Support of the Westinghouse Group Business
(a) The Shareholders shall (i) cooperate and discuss how to introduce to the Westinghouse
Group business opportunities that will assist it in achieving its goals as reflected in the Annual
Budget and the Business Plan and (ii) reasonably make available to the Company and the Westinghouse
Group employees and/or materials that will enable the Westinghouse Group to achieve such goals.
(b) The Parties intend that the Company and the Westinghouse Group will provide for their own
capital, and no additional capital will be required from the Company or the Shareholders. In the
event that the Company or the Westinghouse Group cannot provide its own capital, the Shareholders
will negotiate in good faith concerning the provision of capital and will provide such necessary
financial support as the Shareholders deem appropriate.
(c) If customers, regulatory agencies, financial institutions or other relevant parties
require any guarantees from the Westinghouse Groups parent company in the ordinary course of
Westinghouse Group business such as those set forth in Schedule B hereto, Toshiba will provide such
guarantees;
provided
,
however
, that Toshiba may refuse to provide such guarantee if
and to the extent the scope of guarantee coverage includes the business of any Shareholder (or in
case of Shaw Sub, Shaw) other than Toshiba and its Affiliates. If Toshiba is required to expend
any cash or otherwise incur a liability in connection with its performance of such guarantee, the
Company or the Westinghouse Group shall reimburse Toshiba for such cash or liability, and Toshiba
shall have no claim against any other Shareholder in respect of any such cash or liability.
(d) The Westinghouse Group will use their own insurance provider;
provided
,
that
Toshiba will use its reasonable efforts to cause its insurance providers to insure the
Westinghouse Group, at the Westinghouse Groups expense, if it would result in a cost saving to the
Westinghouse Group.
(e) Each Shareholder may provide to the Westinghouse Group staff support and other support not
in the ordinary course of business;
provided
,
however
, each Shareholder must
execute a separate contract with the Westinghouse Group for such services; provided further that
such services will be performed for reasonable consideration.
SECTION 4.05
Personnel Matters
Except as set forth in Article 3, all decisions as to staffing and personnel matters relating
to the Company, including recruiting sources, appropriate levels of staffing, the appropriate mix
of professionals and training shall be made by the President.
SECTION 4.06
Coordination Office
(a) Toshiba shall cause Westinghouse Electric Company LLC (
WEC
) to have a department or
division called the
Coordination Office
. The functions of the Coordination
15
Office will be: (i) supporting the creation of synergy between the Shareholders businesses and
the Westinghouse Group business; (ii) identifying and developing business opportunities for the
Shareholders in the Westinghouse Group; and (iii) managing day-to-day communication with the
Shareholders. The actual scope of the operation of the Coordination Office shall be determined by
Toshiba after the consultation with the other Shareholders.
(b) The Coordination Office will have a manager (the
Coordination Manager
) who is appointed
or caused to resign by the WEC board of directors based on the request by the President of the
Company.
(c) The Coordination Office will be properly staffed, so that the Coordination Manager may
communicate on a day-to-day basis with the Shareholders. Necessary staff will be sent from WEC
and/or each Shareholder.
ARTICLE 5
CERTAIN AGREEMENTS AMONG THE COMPANY AND THE SHAREHOLDERS
SECTION 5.01
Confidentiality
(a) Each Shareholder other than Toshiba UK agrees to keep confidential, and not to make any
use of nor to disclose to any Person any business, economic, financial or marketing information or
other confidential or proprietary information of the Company, the Westinghouse Group or of the
other Shareholders or any Affiliate thereof, including, without limitation, intellectual property
of a confidential nature (collectively, the
Confidential Information
) (other than disclosure to
such Shareholders Affiliates or such Shareholders or any Affiliates employees, agents, advisors,
or representatives responsible for matters relating to the Company (such Affiliates and each such
Person (but not including any Affiliate of such Shareholder or any other such Person who is an
employee, director, Affiliate or agent of a Competitor of Toshiba or the Westinghouse Group,
regardless of his position with, or relationship to, such Shareholder) being hereinafter referred
to as an
Authorized Representative
) or, in the case of Shaw Sub, disclosure to its actual or
prospective finance parties (provided that Shaw Sub shall not provide any Confidential Information
to any finance party, or any other Person, who is a Competitor of the Westinghouse Group) in
accordance with the terms of (or the implementation of) its financing arrangements for the purchase
of its Shares;
provided
,
that
, prior to any such disclosure to any Authorized
Representative or finance party, each Shareholder other than Toshiba UK shall advise such
Authorized Representative or finance party of the obligations set forth in this Section 5.01 and
direct such Authorized Representative or finance party to treat such Confidential Information
confidentially). Notwithstanding the foregoing, the following will not constitute Confidential
Information for purposes of this Section 5.01: (i) information that is publicly known at the time
of proposed disclosure by such Shareholder, Authorized Representative, or finance party (ii)
information that is obtained by a Shareholder, an Authorized Representative, or a finance party
from a third party other than the Company, members of the Westinghouse Group or another Shareholder
who, to the knowledge of the Shareholder or the Authorized Representative, is not disclosing such
information in breach of a duty of confidentiality; (iii) information that is developed by such
Shareholder or Authorized Representative independent of any Confidential Information of the
Company, any member of the Westinghouse Group or
16
another Shareholder or (iv) financial statements and other information required to be
disclosed by Shaw pursuant to the Securities Exchange Act of 1934 and the rules thereunder or
required to be disclosed by Toshiba or IHI under the Securities and Exchange Law of Japan.
(b) In the event that any Shareholder (or any of its Authorized Representatives or any finance
party) other than Toshiba UK receives a request to disclose all or any part of the Confidential
Information (by oral questions, interrogatories, requests for information or other processes) or if
any Shareholder (or any public company which Controls such Shareholder) is required to disclose all
or any part of the Confidential Information pursuant to any rule or requirement of the Securities
Exchange Commission, or a similar governmental agency or listing authority, such Shareholder agrees
to (i) immediately notify the Company in writing of the existence, terms and circumstances
surrounding such request, (ii) consult with the Company on the advisability of taking legally
available steps to resist or narrow such request and, upon the request of and at expense of the
Company provide reasonable cooperation with respect to any efforts by the Company to obtain a
protective order or other appropriate remedy, and (iii) if disclosure of such Confidential
Information is required, exercise its reasonable best efforts, at the Companys request and
expense, to obtain an order or other reliable assurance that confidential treatment will be
accorded to any portion (or all) of the disclosed portion of the Confidential Information as the
Company so designates. Notwithstanding the foregoing, after compliance with the immediately
preceding sentence, a Shareholder (or any of its Authorized Representatives or any finance party)
may disclose Confidential Information as required by any such governmental authority to which it is
subject, provided that it will (i) inform such authority that the Confidential Information is
subject to this Agreement, (ii) furnish a copy of this Agreement to such authority if required to
do so, (iii) furnish only that portion of the Confidential Information which the Shareholder
believes in good faith, after receiving advice from counsel, it is legally required to disclose,
(iv) exercise its reasonable efforts to obtain reliable assurance that confidential treatment will
be accorded to such Confidential Information, and (v) advise the Company in writing prior to making
such disclosures.
(c) The provisions of Section 5.01 (a) and (b) above shall apply
mutatis mutandis
to Toshiba
UK if the Confidential Information of Shareholders other than Toshiba UK and its Affiliates is
concerned.
(d) Each Shareholder will take adequate security and precautionary measures to effect
compliance with this Section 5.01 by its Authorized Representatives who shall be given access to
Confidential Information as permitted herein and will be responsible for such compliance by such
Persons.
SECTION 5.02
Access
Subject to the confidentiality obligations of each Shareholder and its Authorized
Representatives under Section 5.01, each Shareholder shall have the right, during usual business
hours upon reasonable notice and at such Shareholders expense, to (i) visit the offices of the
Company in order to inspect the books and records of the Company, (ii) inspect the books and
records of the Westinghouse Group, but not at the offices of the Westinghouse Group; and (iii)
discuss the affairs of the Company and Westinghouse Group with the officers of the Company and
Westinghouse Group. The Company shall not be required to maintain any books and
17
records for a period in excess of five years from the date of the making or receipt thereof,
unless a Shareholder reasonably requests that they be maintained for a longer period, except for
those books and records, if any, required by applicable law to be kept for a longer period.
SECTION 5.03
Financial Statements
(a) The Companys fiscal year shall begin on April 1 and end on March 31 of the following
year. In addition to the Companys obligations pursuant to applicable law, as soon as practicable
following the end of each fiscal year of the Company, but in any event within 75 days after the end
of each fiscal year (unless the Company obtains an extension from the Shareholders, which shall not
be unreasonably delayed or withheld), the Company shall cause to be prepared and furnished to each
Shareholder, at the Companys expense, consolidated financial statements consisting of a balance
sheet, profit and loss account and cash flow statement of the Company and its subsidiaries
including financial notes thereto, for such fiscal year, in each case setting forth comparative
figures for the preceding fiscal year (except with respect to the initial such financial
statements, for which a prior period comparison will not be required), and certified by independent
certified public accountants of a Big Four Accounting Firm as to fairness of presentation,
consistency and preparation in accordance with US generally accepted accounting principles (
GAAP
)
audited in accordance with US generally accepted auditing standards.
(b) No later than 40 days following the end of each fiscal quarter (unless the Company obtains
an extension from the Shareholders, which shall not be unreasonably delayed or withheld), the
Company shall cause to be prepared and furnished to each Shareholder, at the Companys expense,
unaudited consolidated financial statements of the Company and its subsidiaries including financial
notes thereto, in each case setting forth comparative figures for the related periods in the prior
fiscal year (except with respect to financial statements provided for the initial four quarters,
for which prior period comparisons will not be required) and certified by the Company as to
preparation in accordance with GAAP (except for the absence of notes thereto).
(c) As soon as practicable following the end of each month, the Company shall cause to be
prepared and furnished to each Shareholder, at the Companys expense, financial statements and
other reports of the Company as and in the format reasonably requested by Toshiba UK.
(d) Subject to Section 5.01, at the reasonable request of any Shareholder and at such
Shareholders expense, the Company shall prepare and deliver to each Shareholder, as soon as
reasonably practicable following such request, any additional financial information and statements
as such Shareholder shall from time to time reasonably request in order to prepare such
Shareholders consolidated financial statements and/or exercise its rights and obligations under
this Agreement. The Company shall have no obligation to deliver such information if, and to the
extent that, the collection and/or production of such information would adversely impact the
Companys day-to-day operations; provided, however, that the Company shall have the obligation to
prepare and deliver three years of historical audited and interim unaudited financial information
of the Westinghouse Group prepared in accordance with GAAP and such other financial information as
required to be filed by Shaw with the Securities Exchange Commission. The requesting Shareholder
shall be responsible for any incremental costs or expenses incurred
18
by the Westinghouse Group in connection with additional information it requests pursuant to
this Section 5.03(d).
SECTION 5.04
Public Announcements
The Parties agree to consult with each other before issuing any press release or making any
public statement with respect to the Company or its affairs, except for such releases and
statements issued or made by the Company in the ordinary course of business and, except as may be
required by applicable law, rule or regulation or any listing agreement with any securities
exchange, no Party will issue any such press release or make any such public statement without the
prior approval of the other Parties hereto, which shall not be unreasonably withheld or delayed.
SECTION 5.05
No Inconsistent Actions
Each Shareholder agrees that, except as expressly permitted in or required by this Agreement,
it shall not (a) grant any proxy, or enter into or agree to be bound by any voting trust, with
respect to any Shares, (b) enter into any shareholder agreements or arrangements of any kind with
any Person with respect to any Shares or (c) take any other action which is inconsistent with the
provisions of this Agreement, including, but not limited to, agreements or arrangements with
respect to the acquisition, disposition or voting of Shares (but except for any financing
activities of Shaw (
provided
,
however
, that the key terms of such activities shall
be disclosed to Toshiba in advance and reasonably acceptable to Toshiba) and the Put Option
Agreement), or act, for any reason, as a member of a group or in concert with any other Persons in
connection with the acquisition, disposition or voting of Shares in any manner which is
inconsistent with the provisions of this Agreement.
SECTION 5.06
No Apparent Authority
Neither the Company nor any Director, officer or employee thereof shall, in such capacity,
have the authority to bind, commit or otherwise obligate any Shareholder (whether in its capacity
as Shareholder or otherwise) or its Affiliates (other than the Company and its Subsidiaries) in any
manner whatsoever.
SECTION 5.07
Undertaking by Shaw Sub
Shaw Sub will not conduct any activities other than activities related to its ownership of the
Class A Shares and the shares of Class A Stock of the US Acquisition Co. and any financing
activities related thereto.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
Each of the Parties hereby, severally and not jointly, represents and warrants to the other
Parties as follows:
SECTION 6.01
Organization
19
Such Party is duly organized, validly existing and (where such concept is recognized) in good
standing under the laws of its jurisdiction of organization with all requisite power and authority
to own, operate and lease its properties and to carry on its business as now being conducted.
SECTION 6.02
Authorization, Validity and Enforceability of This Agreement
Such Party has the power and authority to execute, deliver and perform this Agreement, has
taken all necessary action to authorize its execution and delivery of this Agreement and has taken
all necessary corporate action to perform this Agreement and to consummate the transactions
contemplated herein. This Agreement has been duly executed and delivered by such Party and,
assuming valid execution and delivery by the other Parties, constitutes the legal, valid and
binding agreement of such Party, enforceable against it in accordance with its terms.
ARTICLE 7
TRANSFER OF SHARES
SECTION 7.01
General Restrictions
(a) Except with the prior written consent of the other Shareholders, in the case of a Transfer
by Toshiba UK, or of Toshiba UK, in the case of a Transfer by any other Shareholders, no
Shareholder shall Transfer any of its Shares prior to October 1, 2012, except for Permitted
Transfers.
(b) In addition to the restriction on Transfers set forth in Section 7.01(a), no Shareholder
shall Transfer any of its Shares without the prior approval of the Board and the Owner Board,
whether or not such Transfer occurs before, on or after the Exercise Period End Date (as defined in
the Put Option Agreement), except for Permitted Transfers.
(c) As a condition to the effectiveness of any Transfer permitted by this Agreement, the
transferee must deliver a certificate to the Company and the other Shareholders stating that it
agrees to be bound by the terms and conditions of this Agreement in accordance with Section 10.09,
unless the transferee is already a Party.
(d) Subject to applicable law and where applicable, subject to receipt by the Company of a
duly executed and stamped stock transfer form, all Transfers of Shares, including, without
limitation, Transfers by encumbrance of Shares, shall be recorded or noted in the Companys
register of members.
(e) Upon any Transfer made in accordance with this Article 7, the Shareholders shall make such
amendments to this Agreement as shall be necessary to reflect the addition of a transferee, if
applicable.
SECTION 7.02
Permissible Transfers
(a) Each Shareholder may Transfer, upon receipt of the prior written consent of the other
Shareholders, which consent shall not be unreasonably withheld, all (but not less than all)
20
of its Shares to any of its Affiliates that such Shareholder Controls;
provided,
however
, (i) such Shareholder shall pay all costs, taxes and fees associated with such
transfer, (ii) any Affiliate to whom Shares are transferred, prior to such transfer, shall deliver
an certificate to the Company and the other Shareholders stating that it agrees to be bound by the
terms and conditions of this Agreement in accordance with Section 10.09 and the transferring
Shareholder shall be and remain jointly and severally liable with its transferee Affiliates with
respect to such Affiliates performance of this Agreement, (iii) all necessary third party consents
and regulatory approvals with respect to such proposed transfer shall have been obtained and (iv)
prior to such time as such Shareholder no longer Controls such Affiliate, such Shareholder will
reacquire the Shares from such Affiliate.
(b) Notwithstanding the restrictions on Transfer set forth in this Article 7, for so long as
Toshiba UKs Ownership Percentage exceeds fifty-one percent (51%), Toshiba shall be entitled to
freely transfer its Shares to one or more additional investors;
provided
,
however
,
that (i) such Transfer shall be subject to the restrictions of this Agreement if, immediately
following such Transfer, Toshibas Ownership Percentage would be less than fifty-one percent (51%)
and (ii) all such Transfers shall comply with the provision of Sections 7.01(c) and 7.01(d). For
so long as Shaw Subs Ownership Percentage exceeds fifteen percent (15%), Toshiba UK shall not
transfer any Shares pursuant to this Section 7.02(b) to a Person whose scope of business is
substantially similar to that of Shaw, without Shaw Subs prior written consent; provided that
Toshiba UK shall not transfer any Shares pursuant to this Section 7.02(b) to such a Person without
Shaw Subs prior written consent if Shaw Subs Ownership Percentage falls below fifteen percent
(15%) solely due to dilution caused by equity offerings of the Company.
(c) Notwithstanding the restrictions on Transfer set forth in this Article 7, Shaw Sub and IHI
shall be entitled to freely transfer their Shares pursuant to the Put Option Agreements.
SECTION 7.03
Legend on Share Certificates
In addition to any other legend that may be required, each certificate for Shares that is issued to
any holder thereof shall bear a legend in substantially the following form:
THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AS SET FORTH IN THE SHAREHOLDERS AGREEMENT
DATED AS OF OCTOBER 4, 2006, AS THE SAME MAY BE AMENDED FROM TIME TO
TIME, COPIES OF WHICH MAY BE OBTAINED UPON REQUEST FROM THE ISSUER
HEREOF.
SECTION 7.04
Rights of First Offer
(a) If, but always subject to the provisions of Section 7.01, any Shareholder proposes to
Transfer any Shares (a
Transferring Shareholder
) other than pursuant to Section 7.02, the
Transferring Shareholder shall, at least 60 days prior to such Transfer, deliver to the other
Shareholders an offer (the
First Offer
) to Transfer such Shares upon the terms referred to in
this Section 7.04. The First Offer shall state (i) the number and type of Shares the Transferring
Shareholder proposes to Transfer (the
First Offer Shares
) and the name of the Transferring
21
Shareholder, (ii) the name and address of the proposed offeree (if determined) and (iii) the
proposed amount and type of consideration (including, if the consideration consists in whole or in
part of non-cash consideration, such information available to the Transferring Shareholder as may
be reasonably necessary for the other Shareholders to properly analyze the economic value and
investment risk of such non-cash consideration) and the terms and conditions of payment of the
proposed Transfer, and shall be accompanied by a written offer from the proposed offeree (if
determined) confirming the terms of the First Offer. The First Offer shall remain open and
irrevocable for a period of sixty (60) days (the
First Offer Acceptance Period
) from the date of
its receipt by the other Shareholders.
(b) Any Shareholder may accept the First Offer and purchase its pro rata portion of the First
Offer Shares (based on the ratio such Shareholders Ownership Percentage bears to the Ownership
Percentages of all Shareholders to which a First Offer Notice was delivered) by delivering to the
Transferring Shareholder a notice of such acceptance in writing within the First Offer Acceptance
Period. If any of the other Shareholders (other than Toshiba UK) fails to accept the First Offer,
then Toshiba UK shall have the right to accept such portion of the First Offer as is not accepted
by such other Shareholder within 14 days after the expiry of the First Offer Acceptance Period (the
Extended First Offer Acceptance Period
). As promptly as practicable after any Shareholders
acceptance of the First Offer, such Shareholder and the Transferring Shareholder shall enter into a
customary purchase agreement for the Transfer of such shares reflecting the terms and conditions
set forth in the First Offer Notice.
(c) If the other Shareholders do not, in the aggregate, purchase all of the First Offered
Shares, then the Transferring Shareholder may, within sixty (60) days after the expiration of the
First Offer Acceptance Period or the Extended First Offer Acceptance Period, as the case may be,
Transfer to the original offeree thereof any or all of the First Offered Shares not purchased by
the other Shareholders on terms and conditions no more favorable to the original offeree thereof
than are described in the First Offer, subject to Sections 7.01 and 7.05, if applicable.
(d) The provisions of this Section 7.04 shall not apply to Transfers contemplated by Section
7.05, Section 7.06 and any Permitted Transfer.
SECTION 7.05
Tag-Along Rights
(a) Toshiba UK or any transferee thereof hereby agrees that if it wishes to Transfer, in one
transaction or in a series of related transactions, to any third party Shares constituting a
majority of the Shares held by it as of the Closing Date, then the terms and conditions of such
Transfer shall include an offer by the transferee to the other Shareholders (the
Tagging
Shareholders
) to include, at the option of each Tagging Shareholder, in the Transfer to the third
party, all of the Shares beneficially owned by such Tagging Shareholder. If Toshiba UK receives a
bona fide offer to Transfer from a third party (a
Tag-Along Offer
), in one transaction or in a
series of related transactions, a majority of the Shares held by it as of the Closing Date which it
desires to accept, Toshiba UK shall then cause the Tag-Along Offer to be reduced to writing and
shall provide written notice (the
Tag-Along Notice
) of such Tag-Along Offer to the Tagging
Shareholders in the manner set forth in this Section 7.05. The Tag-Along Notice shall contain an
offer by such third party to purchase or otherwise acquire, in addition to the Shares being
acquired from Toshiba UK, all of the Shares from the Tagging Shareholders at
22
the same price and on the same terms and conditions as contained in the Tag-Along Offer and
shall be accompanied by a true and correct copy of the Tag-Along Offer (which shall identify the
third party purchaser, the number of Shares which the third party is seeking to purchase or
otherwise acquire with respect to which the Shareholders other than Toshiba UK have not exercised
rights of First Offer under Section 7.04, the price contained in the Tag-Along Offer and all the
other terms and conditions of the Tag-Along Offer). Each of the Tagging Shareholders desiring to
accept the Tag-Along Offer shall, within sixty (60) days after the date the Tag-Along Notice is
received by such Tagging Shareholder (the
Tag-Along Notice Period
), deliver a written notice to
Toshiba UK (the
Tag-Along Exercise Notice
). In the event such third party purchaser shall modify
the Tag-Along Offer in any way, Toshiba UK shall send an amended Tag-Along Notice to the Tagging
Shareholders reflecting such modifications and each Tagging Shareholder shall have until the later
of thirty (30) days after the date such amended Tag-Along Notice is received by the it or the end
of the original Tag-Along Notice Period, to deliver an amended Tag-Along Exercise Notice.
(b) If as of the termination of the Tag-Along Notice Period, any Tagging Shareholder shall not
have accepted the Tag-Along Offer, such Tagging Shareholder shall be deemed to have waived any and
all of its rights under this Section 7.05;
provided,
that
, such sale or disposition
is completed on the terms set forth in the Tag-Along Notice within thirty (30) days after the
termination of the Tag-Along Notice Period.
SECTION 7.06
Call Rights
(a) In the event that any Shareholder other than Toshiba UK is or becomes (or there are
reasonable grounds for believing any Shareholder other than Toshiba UK is or has become) insolvent,
in liquidation or in voluntary or involuntary reorganization (each, an
Insolvency Event
), any of
the other Shareholders may request valuation of the Company in accordance with Section 7.06(c).
Within ninety (90) days after the determination of the Company Value pursuant to Section 7.06(c),
each Shareholder shall have the right to purchase some or all its pro rata portion of the Shares
owned by the Shareholder triggering the Insolvency Event (the
Insolvent Shareholder
) (such pro
rata portion to be equal to the ratio of such purchasing Shareholders Ownership Percentages to the
Ownership Percentages of all Shareholders other than the Insolvent Shareholder) by delivering to
the Insolvent Shareholder a notice of such acceptance in writing within such period. Each
Shareholder may also exercise the right before the determination of the Company Value pursuant to
Section 7.06(c), and if so such Shareholder may cancel the exercise within thirty (30) days after
such determination. As promptly as practicable after any Shareholders exercise of such right (or
if a Shareholder exercises such right before such determination of the Company Value, after such
determination), such Shareholder and the Insolvent Shareholder shall enter into a customary
purchase agreement for the purchase of such Shares. If one or more of the Shareholders has not
indicated a desire to purchase all of the Shares permitted to be purchased by it pursuant to this
Section 7.06(a), then the other Shareholders who have indicated a desire to purchase Shares in
excess of the amounts otherwise permitted to be purchased by such Shareholder pursuant to this
Section 7.06(a) shall be allocated the right to purchase an additional number of Shares until the
entire number of Shares owned by the Insolvent Shareholder and desired to be so purchased shall
have been allocated among the participating Shareholders.
23
(b) In the event that Control of any Shareholder (in case of Shaw Sub, including Control of
Shaw) other than Toshiba UK is directly or indirectly transferred or conveyed to, or is acquired by
(or there are reasonable grounds for believing it has been), (i) a Competitor of Toshiba or (ii)
any other Person and Toshiba UK or any other Person has not consented to such change in Control
(which consent will not be unreasonably withheld in the case of an acquisition by any Person other
than a Competitor) (a
CIC Event
), Toshiba UK may request valuation of the Company in accordance
with Section 7.06(c). Within ninety (90) days of the determination of the Company Value pursuant
to Section 7.06(c), Toshiba UK shall have the right to purchase all (but not less than all) of the
Shares owned by the Shareholder triggering the CIC Event (the
CIC Shareholder
) by delivering to
the CIC Shareholder a notice of such acceptance in writing within such period. Toshiba UK may also
exercise the right before the determination of the Company Value pursuant to Section 7.06(c), and
if so Toshiba UK may cancel the exercise within thirty (30) days after such determination. As
promptly as practicable after Toshiba UKs exercise of such right (or, if Toshiba UK exercises such
right before such determination of Company Value, after such determination), Toshiba UK and the CIC
Shareholder shall enter into a customary purchase agreement for the purchase of such Shares. The
CIC Shareholder agree not to exercise any of its rights hereunder as well as those as a shareholder
pending the completion of the acquisition by Toshiba of the Shares owned by the CIC Shareholder.
For the avoidance of doubt, the CIC Shareholder may not disclose any Confidential Information of
the Company, the Westinghouse Group, and other Shareholders or their respective Affiliates to any
third party including a Person Controlling the CIC Shareholder, except in compliance with this
Agreement.
(c) Upon the occurrence of an Insolvency Event or a CIC Event, the Shareholders shall seek to
agree upon the fair market value of the Company as of the date of such event determined on a going
concern basis, without minority discount, marketability discount or premium for change of control,
taking into account such considerations as would customarily affect the price at which a willing
seller would sell and a willing buyer would buy in an arms-length transaction (the
Company
Value
). If the Shareholders are unable to agree upon the Company Value within 60 days after the
Insolvency Event or CIC Event, as applicable, then Shareholders holding 1% over the Ownership
Percentage of Toshiba UK and its Affiliates at the time of the Insolvency Event or CIC Event (i.e.,
initially Shareholders holding seventy-eight percent (78%)) of the Shares shall appoint an
independent investment banking firm of recognized international standing (the
IB Firm
) reasonably
acceptable to each of them to make a determination of the Company Value. When the IB Firm has been
selected, each of the Shareholders shall be permitted to submit a written submission within 20 days
as to the matters such Shareholder believes are relevant to determination of the Company Value by
the IB Firm; copies of the written submissions of each Shareholder shall be sent to the other
Shareholders. The IB Firm shall allow each Shareholder 10 days in which to comment in writing on
the written submissions of the other Shareholders. Within 45 days thereafter, the IB Firm shall
determine the Company Value.
(d) In the event that any Shareholder exercises the put rights set forth in its Put Option
Agreement and the call rights set forth in this Section 7.06 have been, or subsequently are,
exercised with respect to the same Shares, the provisions of such Put Option Agreement shall have
priority.
24
(e) In no event shall a holder of Class A Shares have any obligation to sell any Class A
Shares under this Section 7.06 unless all its Class A Shares are purchased hereunder and all of
such Shareholders (or its Affiliates) Class A Shares of the US Acquisition Co. are also purchased
concurrently.
ARTICLE 8
ARBITRATION
SECTION 8.01
Arbitration
(a) All disputes, controversies or claims (
Disputes
) arising out of or relating to this
Agreement shall first be settled as far as possible by negotiations between the Parties to the
Dispute, in the form of meetings between senior-management level representatives of such Parties
from their respective nuclear energy businesses, upon the written request (a
Request
) by any such
Party to the other such Parties.
(b) If the Parties to the Dispute are unable to resolve a Dispute within two weeks after
receipt by a Party of a Request, then such Dispute shall be settled as far as possible by
negotiations between the Parties to the Dispute, in the form of meetings of representative officers
(senior vice president or equivalent or above) of such Parties from their respective nuclear energy
business.
(c) If the Parties to the Dispute are unable to resolve a Dispute within four (4) weeks after
receipt by any Party of a Request, then any Party may submit the Dispute to arbitration to be
finally and exclusively resolved under the Arbitration Rules of the International Chamber of
Commerce (
ICC
) then in effect (the
Rules
), except as modified herein. Except as otherwise
agreed by the Parties to any such arbitration, any such arbitration shall be conducted by a number
of arbitrators equal to the number of Parties to the Dispute plus one and each of the Parties to
the Dispute shall each select one arbitrator in accordance with the Rules,
provided
,
however
, that if both Toshiba and Toshiba UK are the Parties to the Dispute, they should be
considered as one Party for these purposes and they shall be entitled to select only one
arbitrator. The arbitrators so nominated, once confirmed by the International Court of Arbitration
of the ICC (
ICC Court
), shall nominate an additional arbitrator to serve as chairman, such
nomination to be made within 30 days of the confirmation by the ICC Court of the second arbitrator.
If the initial arbitrators shall fail to nominate an additional arbitrator within said 30-day
period, such additional arbitrator shall be appointed by the ICC Court. The arbitrators shall be
required to submit a written statement of their findings and conclusions. Except as otherwise
agreed by the Parties to such Dispute, exclusive venue of arbitration shall be New York, New York,
and the language of the arbitration shall be English and each of the Parties hereby submits to the
non-exclusive jurisdiction of the state and federal courts located in New York, New York for such
purpose and for the enforcement of any arbitral award. By agreeing to arbitration, the Parties do
not intend to deprive any court of its jurisdiction to issue any pre-arbitral injunction,
pre-arbitral attachment or other order in aid of arbitration proceedings.
25
(d) None of the Parties or the arbitrators shall select any Arbitrator for the arbitral
tribunal who has any interest in the Dispute or who has, or within the immediately preceding five
years has had, any economic or other relationship with any Party to the Dispute.
(e) The award of the arbitrators shall be final and binding upon the Parties, and shall be the
sole and exclusive remedy between and among the Parties regarding any claims, counterclaims,
issues, or accounting presented to the arbitral tribunal. Judgment upon any award may be entered
in any court having jurisdiction thereof.
ARTICLE 9
LIQUIDATION
SECTION 9.01
Liquidation Events
The Shareholders shall seek to commence the winding up of the Company upon the first to occur of
any of the following (each a
Liquidation Event
):
(i) the sale of all or substantially all of the Companys assets; and
(ii) an affirmative approval of the Board to liquidate or otherwise dissolve or
wind up the Company.
SECTION 9.02
Liquidation Procedures
(a) Upon the occurrence of a Liquidation Event, the Directors shall make or cause to be made
all appropriate filings, notifications and certifications and take all other actions necessary or
desirable in order to effectuate the orderly liquidation of the Company in accordance with the
terms of this Agreement and all statutory requirements.
(b) To the extent that there are surplus proceeds of the liquidation of the Company after the
debts of the Company have been paid off in accordance with the statutory order of priority, such
proceeds shall be distributed to the holders of the Shares in compliance with the provisions and
preferences set forth in the Memorandum and Articles of Association of the Company.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01
Amendments; Waivers; Termination
(a) Any provision of this Agreement may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed, in the case of an amendment, by Shareholders representing 1%
over the Ownership Percentage of Toshiba UK and its Affiliates at the time of such amendment (i.e.,
initially seventy-eight percent (78%)) of the Ownership Percentages of all Shareholders, or in the
case of a waiver, by the Party against whom the waiver is to be effective. Notwithstanding the
foregoing, if any amendment to this Agreement would adversely affect the
26
rights of a Shareholder hereunder, such amendment shall require the express written consent of
such Shareholder.
(b) No failure or delay by any Party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
(c) This Agreement shall terminate with respect to Shareholders who no longer hold any Shares
of the Company and such Shareholders shall no longer be party to this Agreement.
SECTION 10.02
Expenses
Except as otherwise specifically provided herein, all costs and expenses incurred by a Party
in connection with the execution and delivery of this Agreement shall be paid by the Party
incurring such costs or expenses.
SECTION 10.03
Notices
Any notices and other communications required to be given pursuant to this Agreement shall be
in writing in English and shall be effective upon delivery by hand or upon receipt if sent by mail
(registered or certified mail, postage prepaid) or upon transmission if sent by facsimile (with
request for confirmation of receipt in a manner customary for communications of such respective
type), except that if notice is received after 5:00 p.m., local time, on a Business Day at the
place of receipt, it shall be effective as of the following Business Day. Notices are to be
addressed as follows:
If to Toshiba or Toshiba UK or the Company, to:
Toshiba Corporation
Toshiba Building 31B
1-1-1, Shibaura, Minato-ku, Tokyo 105-8001, Japan
Attention: General Manager Legal Affairs Department, Power Systems and Services Company
Facsimile No.: + 81-3-5444-9183
Email: ushio.kawaguchi@toshiba.co.jp
with a copy, which shall not constitute notice, to:
Skadden, Arps, Slate, Meagher & Flom LLP
Izumi Garden Tower 21
st
Floor
1-6-1 Roppongi Minato-ku, Tokyo, 106-6021, Japan
Attention: Mitsuhiro Kamiya, Partner
Facsimile No.: + 81-3-3568-2626
Email: mkamiya@skadden.com
If to Nuclear Energy Holdings, L.L.C. to:
27
The Shaw Group, Inc.
4171 Essen Lane
Baton Rouge, Louisiana 70809
Attention: Gary Graphia, Secretary and General Counsel
Facsimile No.: + 1-225-925-9146
Email: gary.graphia@shawgrp.com
with a copy, which shall not constitute notice, to:
Vinson & Elkins LLP
1001 Fannin Street, Suite 2300
Houston, TX 77002
Attention: David Stone, Partner
Facsimile No.: + 1-713-615-5141
Email: dstone@velaw.com
If to IHI, to:
Ishikawajima-Harima Heavy Industries Co., Ltd.
1, Shin-Nakahara-cho,
Isogo-ku, Yokohama 235-8501, Japan
Attention: Kazuo Watanabe, Associate Director & Division Director,
Nuclear Power Division
Facsimile No.: +81-45-759-2524
Email: kazuo_watanabe@ihi.co.jp
with a copy, which shall no constitute notice, to
White & Case LLP/Tokyo Office
19-1, Kandanishiki-cho 1-chome
Chiyoda-ku, Tokyo 101-0054, Japan
Attention: Robert F. Grondine
Facsimile No.: +81-3-3259-0155
Email: rgrondine@whitecase.com
or to such other respective addresses as any Party shall designate to the others by notice in
writing,
provided
that notice of a change of address shall be effective only upon receipt. Any
Person who becomes a Party shall provide its address and fax number to the Company, which shall
promptly provide such information to each other Shareholder.
SECTION 10.04
Governing Law; Severability
This Agreement shall be governed by, and construed in accordance with, the laws of the State
of New York, without giving effect to the principles of conflicts of law thereof (other than
Sections 5-1401 and 5-1402 of the New York General Obligation Law) but except to the extent the
internal laws of the State of Delaware are required to apply. If it shall be determined by an
arbitration tribunal or a court of competent jurisdiction that any provision or wording of this
28
Agreement shall be invalid or unenforceable, such invalidity or unenforceability shall not
invalidate the entire Agreement, in which case this Agreement shall be construed so as to limit any
term or provision so as to make it enforceable or valid within the requirements of New York and
English law, and, in the event such term or provision cannot be so limited, this Agreement shall be
construed to omit such invalid or unenforceable provisions.
SECTION 10.05
Counterparts
This Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon the same
instrument. Executed counterparts delivered by facsimile or electronically will be considered for
all purposes to be equivalent to the executed original for binding effect.
SECTION 10.06
Entire Agreement
This Agreement contains the entire agreement among the Parties with respect to the subject
matter of this Agreement and supersedes all prior agreements and understandings, both oral and
written, among the Parties with respect to such subject matter, including the Participation
Agreements. No representation, inducement, promise, understanding, condition or warranty not set
forth in this Agreement has been made or relied upon by any Party.
SECTION 10.07
Effectiveness
This Agreement shall become effective subject to and effective upon the Closing and only upon
the execution and delivery hereof by all of the Parties and shall continue in full force and effect
until the dissolution of the Company, except as may be terminated earlier by the Parties; provided,
however, that if the Investment Agreement is terminated prior to the Closing this Agreement shall
also terminate as to such terminated Parties, without any further action by the Parties.
SECTION 10.08
Binding Effect; Benefit
This Agreement shall inure to the benefit of and, subject to Section 10.07, be binding upon
the Parties and their respective heirs, successors, legal representatives and permitted assigns.
Nothing in this Agreement, expressed or implied, is intended to confer on any Person other than the
Parties and their respective heirs, successors, legal representatives and permitted assigns, any
rights, remedies, obligations or liabilities under or by reason of this Agreement.
SECTION 10.09
Assignability
(a) Except as otherwise expressly provided herein, neither this Agreement nor any right or
obligation hereunder may be assigned or delegated in whole or in part by any Party without the
prior written consent of the other Parties, and any such attempted assignment or delegation without
such consent shall be null, void
ab initio
and without effect. Any permitted assignment of this
Agreement shall be binding upon and inure to the benefit of the Parties and their respective
successors and permitted assigns. Any Person acquiring Shares who is required by the terms of this
Agreement to become a Party hereto shall execute and deliver to the
29
Company and the other Shareholders an agreement to be bound by this Agreement and shall
thenceforth be a Shareholder, and any Shareholder who ceases to beneficially own any Shares at
all shall cease to have any rights or obligations hereunder (other than as provided in Sections
3.06, (but only with respect to the A Accruals, as such term is defined in the Memorandum and
Articles of Association of the Company), 5.01, 8.01, Article 9 (but only with respect to the A
Accruals) and 10.02).
(b) The restrictions in paragraph (a) above shall not apply to collateral assignment by Shaw
Sub in connection with its financing arrangements for the purchase of its Shares; provided that (i)
the terms of any such collateral assignment require that any enforcement thereof shall only be
carried out in conjunction with a transfer to such assignee of the Shares owned by Shaw Sub and
(ii) such assignee must execute an acknowledgement that it shall be bound by the obligations of
Shaw Sub pursuant to this Agreement as a condition to enforcing any rights hereunder.
SECTION 10.10
Headings
Section headings contained in this Agreement are for reference only and are not intended to
describe, interpret, define or limit the scope or intent of this Agreement or any provision hereof.
SECTION 10.11
Survival
The provisions of Sections 5.01, 7.02, 8.01, 10.02, 10.03, 10.04 and 10.13 and of this Section
10.11 shall survive any termination of this Agreement and any dissolution of the Company, together
with the liability of any Party with respect to a breach of any agreement or covenant contained
herein.
SECTION 10.12
Further Assurances
Each Party hereby agrees to execute and deliver all such other and additional instruments and
documents and to do all such other acts and things as may be reasonably necessary more fully to
effectuate this Agreement and carry on the business of the Company contemplated herein.
SECTION 10.13
No Third-Party Beneficiaries
This Agreement is for the benefit of the Parties and is not intended to confer upon any other
Person any rights or remedies hereunder.
SECTION 10.14
Specific Performance
Each of the Parties acknowledges and agrees that any breach by it of any provision of this
Agreement would irreparably injure another Party and that money damages would be an inadequate
remedy therefor. Accordingly, each of the Parties agrees that, in addition to any money damages,
the other Parties shall be entitled to one or more injunctions enjoining any such breach and
requiring specific performance of this Agreement and consents to the entry thereof.
SECTION 10.15
Preemptive Rights
30
(a) With respect to the issuance by the Company of additional Shares (New Shares), all
Shareholders may elect to subscribe for and purchase for the issuance price offered by the Company
a portion of such New Shares sufficient to maintain its current Ownership Percentage.
(b) The Company shall give each Shareholder thirty (30) days written notice before making any
sale or offering of New Shares and shall advise the Shareholder of its rights under this Section
10.15 to participate in such offering. The notice shall describe the price and the terms on which
the Company proposes to sell, transfer or otherwise sell or distribute such New Shares together
with a calculation of the Shareholders Ownership Percentage and the number of shares it would be
allowed to purchase under this section to maintain its Ownership Percentage after such sale was
complete. Each Shareholder then shall have thirty (30) days after the date of the notice to advise
the Company in writing whether the Shareholder will exercise its rights hereunder and to deliver
payment in full for the New Shares it elects to purchase. If a Shareholder fails to deliver
payment for its portion of the New Shares within the requisite time period, the Company shall
proceed with the offering of such New Shares according to the plan described in the notice
delivered to the Shareholder and any Shareholder failing to exercise such rights shall have no
further preemptive purchase rights under this section in connection with the offering.
SECTION 10.16
No fetter on Companys powers
Nothing in this Agreement shall operate to limit or negate in any way the Companys ability to
exercise any right or power afforded to it by any applicable law. Any provision purporting to so
fetter the Company shall be severed from this Agreement, which severance shall not affect the
validity, legality or enforceability of the remaining provisions of this Agreement.
SECTION 10.17
Limited Recourse to Shaw Sub
(a) Notwithstanding any other provision of this Agreement, the obligations of Shaw Sub
hereunder are limited recourse obligations of Shaw Sub, payable solely from its own assets and only
to the extent of funds available after repayment in full of the Bonds and all other Secured
Obligations. No recourse shall be had to any of the members, shareholders, subscribers, directors,
officers, partners, employees or agents of Shaw Sub or any of their respective successors and
assigns in respect to the obligations of Shaw Sub hereunder or arising in connection herewith.
(b) Each Shareholder agrees not to institute against, or join any other Person in instituting
against, Shaw Sub any bankruptcy, reorganization, arrangement, insolvency, moratorium or
liquidation proceedings or other proceedings under U.S. federal or state bankruptcy or similar laws
until at least one year and one day or, if longer, the applicable preference period then in effect
plus one day, after the repayment in full of the Bonds and all other Secured Obligations.
For the purposes of this Section 10.17:
31
Bonds
means the bonds issued by Shaw Sub on or about the date hereof. Immediately after the
issuance of the Bonds, Shaw Sub shall notify to Toshiba and the Company the amount and interest
rate of the Bonds, provided that Shaw Sub shall be responsible for making the foreign exchange
conversion to yen value transparent to Toshiba and the Company.
Secured Obligations
means all amounts owed by Shaw Sub to the secured parties under and in
connection with the Bonds.
32
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
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TOSHIBA CORPORATION
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By:
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Name: Masao Niwano
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Title: Director, Corporate Senior Executive
Vice President
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TSB NUCLEAR ENERGY INVESTMENT UK LIMITED.
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By:
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Name: Shigenori Shiga
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Title: Director
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NUCLEAR ENERGY HOLDINGS, L.L.C.
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By:
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Name: Gary P. Graphia
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Title: Vice President and Secretary
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ISHIKAWAJIMA-HARIMA HEAVY INDUSTRIES CO., LTD.
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By:
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Name: Yasuo Shinohara
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Title: Board Director and Managing Executive
Officer, President of Energy & Plant Operations
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TOSHIBA NUCLEAR ENERGY HOLDINGS (UK) LIMITED
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By:
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Name: Shigenori Shiga
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Title: Director
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SCHEDULE A
List of Permitted Acquisitions or Disposals
1. Fuel
Investment for cost reduction in the fuel operation.
(M$)
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Investment Item
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FY2008
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FY2009
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FY2010
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Re-conversion facility
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35.8
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35.8
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35.8
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For regulatory compliance
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22.7
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4.7
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2.5
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Handling and inspection equipment
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25.4
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13.8
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5.7
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Sum
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83.9
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54.3
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44.0
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Note: These investments are not included the investment amount ordinarily made in the fuel
business.
2. PBMR
Fulfillment of the condition precedent in the new Shareholders Agreement of PEBBLE BED MODULAR
REACTOR (PROPRIETARY) LIMITED which has been assumed by Westinghouse Electric Company LLC. The
balance of obligation is $10 million as of the date of this Agreement.
3. PaR
Acquisition of the balance of shares of PaR Nuclear Holding Inc. The cost of acquisition is
expected to be $17.2 million in fiscal year 2007.
A-1
SCHEDULE B
BNFL COMMITMENTS
I. Financial Guarantees
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Underlying
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Type and Date
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Governing
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Contract/
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Term of
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Beneficiary
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of Guarantee
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Law
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Obligations
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Guarantee
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Amount *
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Bank One, NA
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Payment Guarantee
Date TBD
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England
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Credit Line for FX
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Unspecified
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USD 50,000,000
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Federal Insurance
Company (Chubb)
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General Agreement
of Indemnity
3/8/99
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Unspecified
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Surety Bonds
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Unspecified
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USD 31,077,838
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JPMorgan Chase
Bank, N.A. as
Administrative Agent
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Payment Guarantee
4/1/05
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New York
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Revolving Credit
Facility
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Facility Expiry
9/08
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USD 600,000,000
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American Insurance
Group
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Deed of Counter-
Indemnity
5/5/03
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England
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Surety Bonds
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Expiry of Last
Bond
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USD 64,891,203
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Bank Brussels
Lambert
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Letter of Undertaking
12/22/00
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Unspecified
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Credit Facility for
Overdrafts,
Advances and
Bank Guarantees
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Unspecified
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EUR 9,915,742
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Commerzbank AG
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Payment Guarantee
3/22/00
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Germany
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Credit Facility for
Overdrafts, FX and
Bank Guarantees
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Facility Expiry
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EUR 16,000,000**
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Deutsche Bank AG
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Payment Guarantee
7/11/03
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Germany
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Credit Facility for
Overdrafts, FX and
Bank Guarantees
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6/30/08
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EUR 16,000,000**
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Skandinaviska
Enskilda Banken AB
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Payment Guarantee
12/4/02
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England
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Credit Line for
Bank Guarantees
Issued to support
Swedish Pension
Plan
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10/31/07
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SEK 25,000,000
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BNP Paribas
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Payment Guarantee
11/26/02
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England
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FX Facility for EdF
Contract
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Unspecified
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EUR 40,000,000
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Bayerische Hypo-
Und Veriensbank
AG
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2/25/05
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England
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FX Facility
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Unspecified
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USD 15,000,000
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*
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Note
: The Amount does not necessarily reflect the current size of BNFLs contingent
liability pursuant to each guarantee. This is difficult to ascertain and is subject to
variation as underlying obligations change. For credit lines, surety bonds and FX and credit
facilities, the Amount is the total amount of such instrument (whether drawn or undrawn).
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**
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Amount
to be verified.
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B-1
II. Transactional Guarantees
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Beneficiary
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Type and Date of Guarantee
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United States Department of Energy
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Performance
6/15/99
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CBS Corporation (Viacom)
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Amended and Restated ESBU Guarantee 3/22/99 of all
performance obligations
under the ESBU Asset Purchase Agreements 3/22/99
(Joint and Several Obligation with Washington Group
International, Westinghouse Government Services LLC,
Westinghouse Government Environmental Services LLC,
Magnox Electric Ltd., BNFL USA Group Inc., BNFL Nuclear
Services Inc., and BNFL Inc.)
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Ameren Services Company
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Novation of CBS Contracts
8/20/99
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Carolina Power & Light
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Novation of CBS Contracts
2/10/00
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CEZ
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Novation of CBS Contracts
6/28/99
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Duke Energy Corporation
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Novation of CBS Contracts
6/30/00
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Entergy Operations, Inc.
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Novation of CBS Contracts
9/21/99
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Korea Electric Power Corporation
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Novation of CBS Contracts
1 /30/00
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New York Power Authority
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Novation of CBS Contracts
1/19/00
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Rochester Gas & Electric
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Novation of CBS Contracts
2/22/00
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South Carolina Electric & Gas Company
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Novation of CBS Contracts
2/11/00
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Tennessee Valley Authority
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Novation of CBS Contracts
7/7/00
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Barseback Kraft Aktiebolag
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Performance Guarantee in connection with ABB Acquisition
10/27/00
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OKG Aktiebolag
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1. Transfer of ABB contract
10/27/00
2. Transfer of ABB contract
11/5/01
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B-2
EXHIBIT
10.6
Dated 13 October 2006
NUCLEAR ENERGY HOLDINGS, L.L.C.
(the Issuer)
and
THE BANK OF NEW YORK
(the Trustee)
BOND TRUST DEED
Linklaters
Ref: 01/210/E.Hickman/ANXJ
Table of Contents
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Contents
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Page
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1 Definitions
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1
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2 Covenant to repay and to pay Interest on Bonds
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4
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3 Trustees Requirements Regarding Paying Agents
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5
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4 Form and Issue of Bonds
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6
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5 Fees, Duties and Taxes
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7
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6 Trust
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7
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7 Cancellation of Bonds and Records
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7
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8 Enforcement
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7
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9 Action, Proceedings and Indemnification
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8
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10 Application of Moneys
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8
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11 Notice of Payments
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9
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12 Investment by Trustee
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9
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13 Partial Payments
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9
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14 Covenants and Warranties by the Issuer
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9
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15 Remuneration and Indemnification of Trustee
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20
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16 Supplement to Trustee Acts
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21
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17 Trustees Liability
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27
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18 Trustee Contracting with the Issuer and Others
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28
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19 Waiver,
Authorisation and Determination
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28
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20 Entitlement to Treat Bondholder as Absolute Owner
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29
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21 Currency Indemnity
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30
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22 New Trustee
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30
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23 Trustees Retirement and Removal
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31
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24 Trustees Powers to be Additional
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31
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25 Notices
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32
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26 Limited Recourse and Non-Petition
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32
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27 Governing Law
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32
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- i -
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Contents
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Page
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28 Submission to Jurisdiction
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32
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29 Counterparts
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33
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30 Contracts (Rights of Third Parties) Act 1999
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33
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Schedule 1 Certificate of Compliance
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34
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Schedule 2 Form of Global Bonds
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35
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Part 1A Form of Temporary Global Bond
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35
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The
Schedule Part I Payments of Principal and Interest
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40
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Schedule 2 Form of Global Bonds
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46
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Part 1B Form of Temporary Global Bond
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46
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The Schedule Part I Payments of Principal and Interest
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51
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Part 2A Form of Permanent Global Bond
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57
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Part 2B Form of Permanent Global Bond
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64
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Schedule 3 Form of Definitive Bond and Coupons and Conditions of the Bonds
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70
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Part 1 Form of Definitive Fixed Rate Bond
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70
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Part 2 Form of Coupon
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72
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Part 3 Form of Talon
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73
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Part 4 Form of Definitive Floating Rate Bond
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74
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Part 5 Form of Coupon
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76
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Part 6 Form of Talon
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77
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Schedule 4 Terms and Conditions of the Bonds
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78
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Schedule 5 Provisions for Meetings of Bondholders
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101
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Schedule 6 Notices
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110
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- ii -
This Bond Trust Deed
is made on 13 October 2006 between:
(1)
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NUCLEAR ENERGY HOLDINGS, L.L.C.,
a company with limited liability organised under the
laws of the State of Delaware, United States of America, whose registered office is c/o Corporation
Trust Center, 1209 Orange Street, Wilmington, Delaware 19801-1120
(the
Issuer
); and
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(2)
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THE BANK OF NEW YORK,
whose principal office is at One Canada Square, London E14 5AL
(the
Trustee,
which expression shall, wherever the context so admits, include such company and
all other persons or companies for the time being the trustee or trustees of these presents) as
trustee for the Bondholders.
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Whereas:
(A)
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By a unanimous written consent of the members of the Issuer passed on 2 October
2006, the Issuer has resolved to issue the Bonds, to be constituted by this Bond Trust Deed.
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(B)
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The Trustee has agreed to act as trustee of these presents for the benefit of the
Bondholders upon and subject to the terms and conditions of these presents.
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Now this Bond Trust Deed witnesses and it is agreed and declared
as follows:
1
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Definitions
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1.1
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Unless otherwise defined in these presents words and expressions defined in
the Conditions, in the deed of charge signed on or about the date of this Bond Trust Deed by, among
others, the parties to this Bond Trust Deed (the
Deed of Charge)
and/or the agency agreement
signed on or about the date of this Bond Trust Deed by, among others, the parties to this Bond
Trust Deed (the
Agency Agreement)
have the same meaning when used in these presents.
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1.2
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The rules of interpretation set out in Clause 1.2 of the Deed of Charge apply to
this Bond Trust Deed.
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1.3
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In these presents unless there is anything in the subject or context inconsistent
therewith the expressions listed below shall have the following meanings:
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Balance
means, where the Issuer is obliged by the Conditions to exercise the
Put Right in respect of its HoldCo Shares and the Issuer decides to either (i) exercise the Put
Right in part only or (ii) not to exercise the Put Right at all, an amount equal to the aggregate
of the Principal Amount Outstanding under the Bonds and the Call Premium (if applicable) less
amounts available to be drawn under the Principal Letter of Credit (and, in the case of a partial
exercise only, the aggregate Put Price for such partial exercise);
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Bondholders
means the persons who for the time being are holders of the
Bonds;
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Bonds
means the Fixed Rate Bonds and the Floating Rate Bonds constituted by this Bond
Trust Deed and for the time being outstanding or, as the context may require, a specific number of
them and includes any replacement Bonds issued pursuant to the Conditions and (except for the
purposes of Clause 4.1) the Global Bonds;
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Bond Documents
mean all of the Transaction Documents but shall exclude the Shareholders
Agreements, the Investment Agreements and the Put Option Agreements;
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Conditions
means in respect of the Bonds, the terms and conditions applicable to them
which shall be substantially in the form set out in Schedule 4 as modified, with respect to
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- 1 -
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any Bonds represented by a Global Bond, by the provisions of such Global Bond, shall
incorporate any additional provisions forming part of such terms and conditions set out in this
Bond Trust Deed and shall be endorsed on the Definitive Bonds and any reference to a particularly
numbered Condition shall be construed accordingly;
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Definitive Bonds
means a Bond in definitive form having, where appropriate, Coupons
attached on issue and, unless the context requires otherwise, includes any replacement Bond in
definitive form issued pursuant to the Conditions;
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Event of Default
means the events specified as such in Condition 9;
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Exercise Period
has the meaning given to it in the Put Option Agreements;
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Fixed Rate Bonds
means the JPY50,980,000,000 2.20 per cent. Fixed Rate Bonds due
2013;
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Floating Rate Bonds
means the JPY78,000,000,000 Floating Rate Bonds due 2013;
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Global Bonds
means the Permanent Global Bonds and the Temporary Global Bonds;
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HoldCo Shares
has the meaning ascribed to it in the Put Option Agreements;
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Officers
means the officers for the time being of the Issuer;
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outstanding
means in relation to the Bonds all the Bonds issued other than:
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(a)
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those Bonds which have been redeemed pursuant to these presents;
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(b)
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those Bonds in respect of which the date for redemption in accordance
with the Conditions has occurred and the redemption moneys (including and all interest payable
thereon) have been duly paid to the Trustee or to the Principal Paying Agent in the manner provided
in the Agency Agreement (and where appropriate notice to that effect has been given to the relative
Bondholders in accordance with Condition 15) and remain available for payment against presentation
of the relevant Bonds and/or coupons;
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(c)
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those Bonds which have become void under Condition 10;
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(d)
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those mutilated or defaced Bonds which have been surrendered and cancelled and in
respect of which replacements have been issued pursuant to Condition 11;
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(e)
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(for the purpose only of ascertaining the aggregate Principal Amount Outstanding of the
Bonds and without prejudice to the status for any other purpose of the Bonds) those Bonds which are
alleged to have been lost, stolen or destroyed and in respect of which replacements have been
issued pursuant to Condition 11;
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(f)
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any Global Bond to the extent that it shall have been exchanged for another
Global Bond in respect of the Bonds or for the Bonds in definitive form pursuant to its provisions;
and
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PROVIDED THAT for each of the following purposes, namely:
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(i)
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the right to attend and vote at any meeting of the Bondholders, the passing of any
resolution in writing, the passing of any Extraordinary Resolution or Written Resolution and any
direction or request by the Bondholders;
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- 2 -
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(ii)
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the determination of how many and which Bonds are for the time being outstanding for the
purposes of Clause 8.1, Conditions 9 and 13 and paragraphs 4, 7 and 9 of Schedule 5;
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(iii)
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any discretion, power or authority (whether contained in these presents or vested by
operation of law) which the Trustee is required, expressly or impliedly, to exercise in or by
reference to the interests of the Bondholders or any of them; and
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(iv)
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the determination by the Trustee whether any event, circumstance, matter or thing is,
in its opinion, materially prejudicial to the interests of the Bondholders or any of them,
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those Bonds (if any) which are for the time being held by or on behalf of or for the benefit of the
Issuer, any holding company or any other subsidiary of such holding company as beneficial owner and
all Toshiba Bonds, shall (unless and until ceasing to be so held) be deemed not to remain
outstanding;
Permanent Global Bonds
means the permanent global bonds representing the Bonds
substantially in the form set out in Part 2A and 2B of Schedule 2 to this Bond Trust Deed, and
Permanent Global Bond
shall mean any one of them;
Potential Event of Default
means an event or circumstance that could with the giving of notice,
lapse of time, issue of a certificate and/or fulfilment of any other requirement provided for in
Condition 9 become an Event of Default;
Put Option Agreements
means the US Put Option Agreement and the UK Put Option
Agreement;
Put Substitution Letter of Credit
means a direct pay irrevocable letter of credit to the
Trustee, in form and substance satisfactory to the Trustee issued by a Put Substitution Letter of
Credit Bank for an amount equal to the Balance and in circumstances where the Issuer is obliged by
the Conditions to exercise the Put Right in respect of its HoldCo Shares and the Issuer decides to
either (i) exercise the Put Right in part only or (ii) not to exercise the Put Right at all;
Put Substitution Letter of Credit Bank
means a bank with a senior-unsecured long-term credit
rating of at least Aa3 by Moodys and AA- or equivalent by
R&I acting as the put substitution
letter of credit bank pursuant to the Put Substitution Letter of Credit;
Shareholders Agreements
means the US Shareholders Agreement and the UK Shareholders
Agreement;
Shaw Group
means The Shaw Group Inc. and all of its affiliates (other than the
Issuer);
Toshiba
means Toshiba Corporation;
Toshiba Bonds
means Bonds held, legally or beneficially, by or on behalf of Toshiba or any
of its affiliates (or in respect of which the relevant Bondholder or any other person has made a
declaration of trust in respect of, entered into a sub-participation arrangement with or entered
into any other arrangement having substantially the same economic effect (or granting voting
control over the relevant Bonds to) with Toshiba or any of its affiliates);
Toshiba Event
has the meaning given to it in the Put Option Agreements;
these presents
means this Bond Trust Deed and the Schedules and any deed supplemental hereto and
the Schedules (if any) thereto, the Deed of Charge and the
- 3 -
Bonds and the Conditions,
all as from time to time modified in accordance with the provisions herein or therein
contained;
Temporary Global Bonds
means the temporary global bonds representing the Bonds
substantially in the form set out in Part 1A and 1B of Schedule 2 to this Bond Trust Deed and
Temporary Global Bond
shall mean any one of them;
Trust Corporation
means (i) a corporation appointed by court to be a trustee or (ii) a
corporation entitled to act as a trustee pursuant to the Public Trustee Act 1906 or (iii) otherwise
entitled pursuant to relevant legislation to carry on the functions of a trustee;
UK
Put Option Agreement
means the put option agreement dated on or about the date of this Bond Trust
Deed between the Issuer and Toshiba related to the UK Shares;
UK
Shareholders Agreement
means the shareholders agreement dated 4 October 2006 between Toshiba, UK
HoldCo and the other shareholders of UK HoldCo;
Underlying Acquisition
means the acquisition by the HoldCos of, in the case of
US HoldCo, BNFL USA Group Inc. and, in the case of UK HoldCo, Westinghouse Electric UK Limited,
which together constitute the Westinghouse Group to be purchased by Toshiba pursuant to its
previously announced acquisition of the Westinghouse Group from BNFL Ltd. and its affiliates;
US Put Option Agreement
means the put option agreement dated on or about the date of this
Bond Trust Deed between the Issuer and Toshiba related to the US Shares; and
US Shareholders Agreement
means the shareholders agreement dated 4 October 2006 between
Toshiba, US HoldCo and the other shareholders of US HoldCo.
2
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Covenant to repay and to pay Interest on Bonds
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2.1
|
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The aggregate principal amount of the Fixed Rate Bonds is limited to
JPY50,980,000,000, and the aggregate principal amount of the Floating Rate Bonds
is limited to JPY78,000,000,000.
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2.2
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The Issuer covenants with the Trustee that it will, in accordance with these
presents, on any date on which any of the Bonds becomes due to be redeemed in whole or in part in
accordance with the Conditions, pay or procure to be paid unconditionally to or to the order of the
Trustee in Yen in London in immediately available funds the principal amount of the Bonds repayable
on that date, together with the Call Premium (if any), as consideration for the advance of the
principal and any other provisions from which the Issuer benefits in respect of the Bonds (other
than the use of the principal secured from time to time) and shall
in the meantime and until such date (both before and after any judgment or other order of a court
of competent jurisdiction) pay or procure to be paid unconditionally to or to the order of the
Trustee as aforesaid interest as the sole consideration for the use of the principal secured from
time to time (which shall accrue from day to day) on the Principal Amount Outstanding of the Bonds
at rates specified in, or calculated from time to time in accordance with, the Conditions and on
the dates provided for in the Conditions PROVIDED THAT:
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(a)
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every payment of principal, Call Premium or interest in respect of the Bonds to or to the
account of the Principal Paying Agent in the manner provided in the Agency Agreement shall operate
in satisfaction
pro tanto
of the relative covenant by the
|
- 4 -
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Issuer in this Clause except
to the extent that there is default in the subsequent payment thereof in accordance with the
Conditions to the relevant Bondholders;
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(b)
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in any case where payment of principal or Call Premium in respect of the Bonds is not
made to the Trustee or the Principal Paying Agent on or before the due date interest shall continue
to accrue on the aggregate Principal Amount Outstanding of the Bonds and any Call Premium (both
before and after any judgment or other order of a court of competent jurisdiction) at the rate or
rates aforesaid (or, if higher, the rate of interest on judgment debts for the time being provided
by English law) up to and including the date which the Trustee determines to be the date on and
after which payment is to be made to the Bondholders in respect thereof as stated in a notice given
to the Bondholders in accordance with Condition 15 (such date to be not later than 30 days after
the day on which the whole of such principal amount and any Call Premium, together with an amount
equal to the interest which has accrued and is to accrue pursuant to this proviso up to and
including that date, has been received by the Trustee or the Principal Paying Agent); and
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(c)
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in any case where payment of any principal or Call Premium in respect of any Bond is
improperly withheld or refused upon due presentation thereof (other than in circumstances
contemplated by proviso (b) above) interest shall accrue on such principal or Call Premium which
has been so withheld or refused (both before and after any judgment or other order of a court of
competent jurisdiction) at the rate or rates aforesaid (or, if higher, the rate of interest on
judgment debts for the time being provided by English law) from and including the date of such
withholding or refusal up to and including the date on which, upon further presentation of the
relevant Bond, payment of the full amount (including interest as aforesaid) payable in respect of
such Bond is made or (if earlier) the seventh day after notice is given to the relevant Bondholder
(either individually or in accordance with the Conditions) that the full amount (including interest
as aforesaid) payable in respect of such Bond is available for payment, provided that, upon further
presentation thereof being duly made, such payment is made.
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3
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Trustees Requirements Regarding Paying Agents
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At any time after an Event of Default or a Potential Event of Default shall have occurred or
if there is a failure to make payment of any amount in respect of any Bond when due or the Trustee
shall have received any money which it proposes to pay under Clause 10 to the Bondholders, the
Trustee may:
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(a)
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by notice in writing to the Issuer, the Principal Paying Agent and the other Paying
Agents require the Principal Paying Agent and the other Paying Agents pursuant to the Agency
Agreement:
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(i)
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to act thereafter as Principal Paying Agent and Paying Agents of the Trustee in relation to
payments to be made by or on behalf of the Trustee under the provisions of these presents
mutatis mutandis
on the terms provided in the Agency Agreement (save that the Trustees liability
under any provisions thereof for the indemnification, remuneration and payment of out-of-pocket
expenses of the Principal Paying Agent and the other Paying Agents shall be limited to the amounts
for the time being held by the Trustee on the trusts of these presents relating to the relative
Bonds and available for such purpose) and thereafter to hold all Bonds and all sums,
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- 5 -
documents and records held by them in respect of the Bonds on behalf of the Trustee; or
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(ii)
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to deliver up all Bonds and all sums, documents and records held by them in respect of Bonds
to the Trustee or as the Trustee shall direct in such notice provided that such notice shall be
deemed not to apply to any documents or records which any Paying Agent is obliged not to release by
any law or regulation; and/or
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(b)
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by notice in writing to the Issuer require it to make
all subsequent payments in respect of the Bonds to or to the order of the Trustee and not to the
Principal Paying Agent; and with effect from the issue of any such notice to the Issuer and until
such notice is withdrawn Clause 3(a) shall cease to have effect.
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4
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Form and Issue of Bonds
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4.1
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The Bonds shall be represented initially by the Temporary Global Bonds which the
Issuer shall issue to a bank depositary common to both Euroclear and Clearstream, Luxembourg.
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4.2
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Each Temporary Global Bond shall be printed or typed in the form or substantially in the
form set out in Part 1A and Part 1B (as the case may be) of Schedule 2 and may be a facsimile. The
Temporary Global Bond in respect of the Fixed Rate Bonds shall be in the aggregate principal amount
of JPY50,980,000,000 and the Temporary Global Bond in respect of the Floating Rate Bonds shall be
in the aggregate principal amount of JPY78,000,000,000 and each of them shall be signed manually or
in facsimile by two Officers of the Issuer on behalf of the Issuer and shall be authenticated by or
on behalf of the Principal Paying Agent. Each Temporary Global Bond so executed and authenticated
shall be a binding and valid obligation of the Issuer and title thereto shall pass by
delivery.
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4.3
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The Issuer shall issue a Permanent Global Bond in exchange for each Temporary
Global Bond in accordance with the provisions thereof. Each Permanent Global Bond shall be printed
or typed in the form or substantially in the form set out in Part 2A and Part 2B (as the case may
be) of Schedule 2 and may be facsimiles. The Permanent Global Bond in respect of the Fixed Rate
Bonds shall be in the aggregate principal amount of JPY50,980,000,000 and the Permanent
Global Bond in respect of the Floating Rate Bonds shall be in the aggregate principal amount of
JPYT78,000,000,000, and each of them shall be signed manually or in facsimile by two Officers of
the Issuer on behalf of the Issuer and shall be authenticated by or on behalf of the Principal
Paying Agent. Each Permanent Global Bond so executed and authenticated shall be a binding and valid
obligation of the Issuer and title thereto shall pass by delivery.
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4.4
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If the Issuer becomes obliged to do so in accordance with the provisions of the Permanent
Global Bonds, the Issuer shall issue Definitive Bonds (together with unmatured coupons attached) in
exchange for the relevant Permanent Global Bond, in accordance with the provisions thereof.
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4.5
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If the Issuer has become obliged to issue Definitive Bonds, these presents and the
other Transaction Documents will be amended in such manner as the Trustee requires to take account
of the issue of Definitive Bonds.
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- 6 -
5
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Fees, Duties and Taxes
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The Issuer will pay any stamp, issue, registration, documentary and other fees, duties and
taxes, including interest and penalties, payable on or in connection with (i) the execution and
delivery of these presents and the other Transaction Documents to which the Issuer is party, (ii)
the constitution and original issue of the Bonds and (iii) any action taken by or on behalf of the
Trustee or (where permitted under these presents so to do) any Bondholder to enforce, or to resolve
any doubt concerning, or for any other purpose in relation to, these presents or any of the other
Transaction Documents.
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6
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Trust
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6.1
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The Trustee will hold the benefit of the covenants in its favour contained in
these presents and the other Transaction Documents upon trust for itself and the Bondholders,
according to its and their respective interests, upon and subject to the terms and conditions of
these presents.
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6.2
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The provisions contained in Schedule 4 and Schedule 5 shall have effect as if set out
herein.
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7
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Cancellation of Bonds and Records
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7.1
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The Issuer shall procure that all Bonds (i) redeemed in full or (ii) which, being
mutilated or defaced, have been surrendered and replaced pursuant to Condition 11 shall forthwith
be cancelled by or on behalf of the Issuer and a certificate stating:
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(a)
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the
aggregate Principal Amount Outstanding of Bonds which have been redeemed (and the due date of such
redemptions);
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(b)
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the aggregate amount of interest paid (and the due dates of
such payments) in respect of Bonds; and
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(c)
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the aggregate Principal Amount
Outstanding of Bonds which have been surrendered and replaced,
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shall be given
to the Trustee by or on behalf of the Issuer as soon as possible and in any event within one month
after the end of each calendar quarter during which any such redemption, payment and interest or
replacement (as the case may be) takes place. The Trustee may accept such certificate as conclusive
evidence of any such redemption, payment of interest or replacement of or in respect of the Bonds
and, where applicable, of cancellation of the relevant Bonds.
7.2
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The Issuer shall procure (i) that the Principal Paying Agent shall keep a full and
complete record of the Bonds and of their redemption in whole or in part, cancellation and payment
of interest and of all replacement Bonds issued in substitution for lost, stolen, mutilated,
defaced or destroyed Bonds and (ii) that such records shall be made available to the Trustee at all
reasonable times.
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8
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Enforcement
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8.1
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The Trustee may at any time, at its discretion and without notice, take such proceedings
and/or other steps as it may think fit against or in relation to the Issuer or any other person to
enforce its obligations under these presents or any other Bond Document and exercise
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- 7 -
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any of its rights under, or in connection with, these presents or any other Bond Document in
such manner as it thinks fit.
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8.2
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Proof that as regards any specified Bond the Issuer
has made default in paying any amount due in respect of such Bond shall (unless the contrary be
proved) be sufficient evidence that the same default has been made as regards all other Bonds (as
the case may be) in respect of which the relevant amount is due and payable.
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9
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Action, Proceedings and Indemnification
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9.1
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The Trustee shall not be bound to take any action in relation to these presents or
any other Bond Documents (including, but not limited to, the giving of a Bond Enforcement Notice or
the taking of any proceedings and/or steps and/or action mentioned in Clause 8.1) unless:
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(a)
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directed to do so by an Extraordinary Resolution of the holders of the Bonds
outstanding, or requested to do so in writing by the holders of at least 75 per cent in aggregate
Principal Amount Outstanding of the outstanding; and
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(b)
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then only if it shall be indemnified and/or secured to its satisfaction against
all Liabilities to which it may render itself liable or which it may incur by so doing and, for
this purpose, the Trustee may demand prior to taking any such action, that there be paid to it in
advance such sums as it considers (without prejudice to any further demand) shall be sufficient so
to indemnify it.
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9.2
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As between the Trustee and the Bondholders, only the Trustee may enforce the provisions
of these presents and the other Bond Documents. No Bondholder shall be entitled to proceed directly
against the Issuer or any other person to enforce the performance of any of the provisions of these
presents or any other Bond Documents unless the Trustee having become bound as aforesaid to take
proceedings fails to do so.
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10
|
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Application of Moneys
|
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All moneys received by the Trustee under this Deed shall be held by the Trustee upon trust
for itself and the Bondholders to apply them (subject to Clause 13):
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(a)
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first, in payment or satisfaction of all costs, charges, expenses and liabilities
properly incurred by the Trustee (including remuneration payable to it in carrying out its
functions under this Bond Trust Deed);
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(b)
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second, in or towards payment
pari passu
and rateably of all principal, Call Premium and
interest then due and unpaid in respect of the Bonds in the order of priority set out in clauses
6.3 and 7.2 of the Deed of Charge (for the avoidance of doubt ignoring any liabilities other than
in respect of the Bonds); and
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(c)
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third, in payment of the balance (if any) to the Issuer (without prejudice to, or
liability in respect of, any question as to how such payment to the Issuer shall be dealt with as
between the Issuer and any other person).
|
Without prejudice to this Clause 10, if the
Trustee holds any moneys which represent principal, Call Premium or interest in respect of Bonds
which have become void or in respect of which claims have been prescribed under Condition 10, the
Trustee will hold such moneys on the above trusts.
- 8 -
11
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Notice of Payments
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The Trustee shall give notice to the relevant
Bondholders in accordance with the Conditions of the day fixed for any payment to them under Clause
10. Such payment may be made in accordance with the Conditions and any payment so made shall be a
good discharge to the Trustee.
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12
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Investment by Trustee
|
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12.1
|
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The Trustee may at its discretion and pending payment invest moneys at any time
available for the payment of principal and interest on the Bonds in some or one of the investments
hereinafter authorised for such periods as it may consider expedient with power from time to time
at its discretion to vary such investments and to accumulate such investments and the resulting
interest and other income derived therefrom. The
accumulated investments shall be applied under Clause 10. All interest and other income deriving
from such investments shall be applied first in payment or satisfaction of all amounts then due and
unpaid under Clause 15 to the Trustee and otherwise held for the benefit of and paid to the
Bondholders.
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12.2
|
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Any moneys which under the trusts of these presents ought to or may be invested by
the Trustee may be invested in the name or under the control of the Trustee in any investments or
other assets in any part of the world whether or not they produce income or by placing the same on
deposit in the name or under the control of the Trustee at such bank or other financial institution
and in such currency as the Trustee may think fit. If that bank or institution is the Trustee or a
subsidiary, holding or associated company of the Trustee, it need only account for an amount of
interest equal to the standard amount of interest which would, at the then current rates, be
payable by it on such a deposit to an independent customer. The Trustee may at any time vary any
such investments for or into other investments or convert any moneys so deposited into any other
currency and shall not be responsible for any loss resulting from any such investments or deposits,
whether due to depreciation in value, fluctuations in exchange rates or otherwise.
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13
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Partial Payments
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Upon any payment under Clause 10 (other than payment in full against surrender of a Bond),
the Bond in respect of which such payment is made shall be produced to the Trustee or the Paying
Agent by or through whom such payment is made, and the Trustee shall or shall cause such Paying
Agent to enface thereon a memorandum of the amount and the date of payment but the Trustee may
dispense with such production and enfacement upon such indemnity being given as it shall think
sufficient.
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14
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Covenants and Warranties by the Issuer
|
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14.1
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Covenants of the Issuer
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So long as any of the Bonds remains outstanding the
Issuer covenants with the Trustee that it shall:
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(a)
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at all times carry on and conduct its affairs in a proper and efficient
manner;
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(b)
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give or procure to be given to the Trustee such opinions, certificates,
information and evidence as it shall require and in such form as it shall require (including
without limitation the procurement by the Issuer of all such certificates called for by
|
- 9 -
the Trustee pursuant to Clause 16(c)) for the purpose of the discharge or exercise of the
duties, trusts, powers, authorities and discretions vested in it under these presents or any other
Bond Document or by operation of law;
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(c)
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cause to be prepared and certified by its auditors in respect of each financial
accounting period accounts in such form as will comply with all relevant legal and accounting
requirements;
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(d)
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send to the Trustee (in addition to any copies to which it may be entitled as a
holder of any securities of the Issuer) two copies in English of every balance sheet, profit and
loss account, report, circular and notice of general meeting and every other document issued or
sent to its members together with any of the foregoing, and every document issued or sent to
holders of securities other than its members (including the Bondholders) at the time of the issue
or publication thereof;
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(e)
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immediately give notice in writing to the Trustee of the occurrence of any Event of
Default or any Potential Event of Default;
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(f)
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give to the Trustee (a) within seven days after demand by the Trustee therefor and (b)
(without the necessity for any such demand) promptly after the publication of its audited accounts
in respect of each financial period commencing with the financial period ending 31 December 2006
and in any event not later than 180 days after the end of each such financial period a certificate
signed by two Officers of the Issuer to the effect that as at a date not more than seven days
before delivering such certificate (the
certification
date
) there did not exist and had not
existed since the certification date of the previous certificate (or in the case of the first such
certificate the date hereof) any Event of Default or any Potential Event of Default (or if such
Event of Default or Potential Event of Default exists or existed specifying the same) and that
during the period from and including the certification date of the last such certificate (or in the
case of the first such certificate the date hereof) to and including the certification date of such
certificate the Issuer has complied with all its obligations contained in these presents and the
other Transaction Documents or (if such is not the case) specifying the respects in which it has
not complied;
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(g)
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at all times execute and do all such further documents, acts and things as may be
necessary at any time or times in the opinion of the Trustee to give effect to these presents;
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(h)
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at all times maintain Paying Agents in accordance with the Conditions;
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(i)
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procure the Principal Paying Agent to notify the Trustee forthwith in the event that the
Principal Paying Agent does not, by the time specified in the Agency Agreement for any payment to
it in respect of the Bonds, receive unconditionally pursuant to and in accordance with the Agency
Agreement payment of the full amount in Yen of the moneys payable on such due date on the
Bonds;
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(j)
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in the event of the unconditional payment to the Principal Paying Agent or the Trustee
of any sum due in respect of the Bonds being made after the time specified in the Agency Agreement,
for such payment forthwith give or procure to be given notice to the relevant Bondholders in
accordance with the Conditions that such payment has been made;
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(k)
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give notice to the Bondholders in accordance with the Conditions, of any appointment,
resignation or removal of any Paying Agents or Principal Paying
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- 10 -
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Agent (other than the
appointment of the initial Principal Paying Agent) after having obtained the prior written approval
of the Trustee thereto or any change of the Paying Agents specified office and (except as provided
by the Agency Agreement or the Conditions) at least 30 days prior to such event taking effect;
provided always that so long as any of the Bonds remains liable to prescription in the case of
termination of the appointment of the Principal Paying Agent no such termination shall take effect
until a new Principal Paying Agent (as the case may be) has been appointed on terms previously
approved in writing by the Trustee;
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(l)
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send to the Trustee, not less than 14 days prior to the date on which any such notice is
to be given, the form of every notice to be given to the Bondholders in accordance with the
Conditions and obtain the prior written approval of the Trustee to, and promptly give to the
Trustee two copies of, the final form of every notice to be given to the Bondholders in accordance
with the Conditions (such approval, unless so expressed, not to constitute approval for the
purposes of Section 21 of the Financial Services and Markets Act 2000 of the United Kingdom of a
communication within the meaning thereof);
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(m)
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comply with and perform all its obligations under the Agency Agreement and use its best
endeavours to procure that the Paying Agents comply with and perform all their respective
obligations thereunder and any notice given by the Trustee pursuant to Clause 3(a) and not make any
amendment or modification to such Agreement without the prior written approval of the Trustee and
use all reasonable endeavours to make such amendments to such Agreement as the Trustee may
require;
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(n)
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in order to enable the Trustee to ascertain the principal amount of Bonds for the time
being outstanding for any of the purposes referred to in the proviso to the definition of
outstanding in Clause 1, deliver to the Trustee forthwith upon being so requested in writing by the
Trustee a certificate in writing signed by two Officers of the Issuer setting out the total number
and aggregate principal amount of Bonds (if any) which are at the date of such certificate held by,
for the benefit of, or on behalf of, the Issuer, any holding company or any other subsidiary of
such holding company and setting out the total number of Toshiba Bonds;
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(o)
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procure that each of the Paying Agents makes available for inspection by Bondholders at
its specified office copies of these presents, the Agency Agreement, any other Transaction
Documents and any other document as provided in clause 24 of the Agency Agreement and the then
latest audited balance sheets and profit and loss account (consolidated if applicable) of the
Issuer;
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(p)
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give notice to the Trustee of the proposed redemption of the Bonds at least five
Business Days prior to the giving of any notice of redemption in respect of such Bonds in
accordance with the Conditions;
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(q)
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at all times use all reasonable endeavours to minimise taxes and any other costs arising
in connection with its payment obligations in respect of the Bonds;
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(r)
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prior to making any modification or amendment or supplement to these presents, procure
the delivery of (a) legal opinion(s) as to English and any other relevant law, addressed to the
Trustee, dated the date of such modification or amendment or supplement, as the case may be, and in
a form acceptable to the Trustee from legal advisers acceptable to the Trustee;
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- 11 -
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(s)
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give notice to the Trustee of the proposed exercise of a Put Right (as defined in the Put
Option Agreements);
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(t)
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not redeem or, as the case may be, give notice of redemption to Bondholders of all or
any part of the Bonds pursuant to Condition 6(b) unless it shall first have provided to the Trustee
such certificates and opinions as may be required to be given to the Trustee pursuant to and in
accordance with Condition 6(b);
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(u)
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ensure that, save as permitted in these presents and any other Transaction Document, no person
other than the Trustee shall have any equitable interest in the Charged Property;
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(v)
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ensure that there is at all times a Cash Manager appointed in accordance with the
provisions of the Cash Management Agreement;
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(w)
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prior to any enforcement of the Security, ensure that all relevant funds are applied in or
towards satisfaction of such of the obligations set out in the Pre-Enforcement Priority of Payments
then due and payable (in each case only if and to the extent that payments or provisions of a
higher order of priority which are also due and payable or, where relevant, are likely to fall due
at that time or prior to the next succeeding Interest Payment Date or Early Redemption Date (as the
case may be) have been made or provided for in full);
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(x)
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furnish, or procure that there is furnished, from time to time, any and all documents,
instruments, information and undertakings that may be necessary in order to maintain the
current ratings of the Bonds by the Rating Agencies (save that when any such document, instrument,
information and/or undertaking is not within the possession or control of the Issuer, the Issuer
agrees to use all reasonable efforts to furnish, or procure that there is furnished, from time to
time any such documents, instruments, information and undertakings as may be necessary in order to
maintain the current ratings of the Bonds by the Rating Agencies);
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(y)
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procure that there are done on its behalf, all calculations required pursuant to the
Conditions;
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(z)
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duly notify the Trustee if it is required to withhold or deduct any amount for or on account of
tax from payments it is liable to make in respect of the Bonds;
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(aa)
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conduct its membership meetings and other central management activities solely within
the United States of America;
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(bb)
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take (to the extent it is directed to do so by the Trustee) such steps as are reasonable to
enforce all its rights:
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(i)
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as required by the terms of the Bond Trust Deed;
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(ii)
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in respect of the Security; and
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(iii)
|
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under the Transaction Documents;
|
(cc)
|
|
comply with its obligations under the Bonds, the Bond Trust Deed and each other Transaction
Document to which it is a party;
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(dd)
|
|
keep proper books of account in accordance with its obligations under applicable laws (such
books to be maintained at the Issuers registered office) and allow the Trustee and any person
appointed by the Trustee access to the books of account
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- 12 -
|
|
|
of the Issuer at all reasonable
times during normal business hours and shall send to any such person on request or, if so
stipulated, at specified intervals, copies thereof and other supporting documents relating thereto
as such person may specify;
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(ee)
|
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at all times maintain its tax residence in the United States of America and will not establish
a branch, agency, permanent establishment or place of business or register as a company outside the
United States of America;
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(ff)
|
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ensure that it is not treated as being resident or having a permanent establishment in the
United Kingdom for United Kingdom tax purposes and will not establish a place of business in the
United Kingdom or appoint an agent who will have and habitually exercise in the United Kingdom an
authority to do business on behalf of the Issuer;
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(gg)
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pay its debts generally as they fall due;
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(hh)
|
|
do all such things as are necessary to maintain its corporate existence;
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(ii)
|
|
to the extent the Issuer is able to, supply such information to the rating agencies as
they may reasonably request in connection with the rating of the Bonds;
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(jj)
|
|
at all times use all reasonable efforts to minimise taxes and any other costs arising
in connection with its activities;
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(kk)
|
|
have at least one independent director from
Lord Securities
Corporation (or such other replacement independent director whose appointment will not negatively
impact the rating of the Bonds), who is not a director, employee or shareholder of any member of
the Shaw Group;
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(ll)
|
|
notify the Trustee and the Bondholders promptly (and in any event within five days) upon
completion of the Underlying Acquisition;
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(mm)
|
|
notify the Trustee and the Bondholders promptly upon becoming aware that a Toshiba Event has
occurred;
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(nn)
|
|
where it is exercising the Put Right (which it shall only do in accordance with these
Conditions) under one of the Put Option Agreements, exercise the Put Right under the other Put
Option Agreement at the same time;
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(oo)
|
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exercise the Put Rights on the date (the
Automatic
Put Option Date
) that is 160 days prior
to the Maturity Date by sending an Exercise Notice (as defined in the Put Option Agreements) to
Toshiba in accordance with each Put Option Agreement;
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(pp)
|
|
exercise the Put Rights within one Business Day after the commencement of the Exercise
Period if, as of 31 March 2010, the Interest Letter of Credit has not been increased to such amount
(or a new Interest Letter of Credit has not been issued in such amount) as the Cash Manager
estimates will be required to meet all payments for which the Interest Letter of Credit may be
drawn (in accordance with the terms of these Conditions and the Bond Trust Deed) in the period from
the end of the Initial Period to the Maturity Date;
|
|
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(qq)
|
|
if at any time during the Exercise Period Toshibas senior-unsecured long-term credit
rating is rated Ba3 or lower by Moodys, exercise the Put Rights within five
|
- 13 -
|
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Business
Days of the later of (i) the occurrence of such rating downgrade, and (ii) the commencement of the
Exercise Period;
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(rr)
|
|
(i) notify the Trustee as soon as reasonably practicable, and in any event within five
Business Days, following receipt of a request by any shareholder for a valuation of either HoldCo
in accordance with section 7.06 of the applicable Shareholders Agreement and (ii) exercise the Put
Rights within 5 Business Days after the receipt by the Issuer of a Call Option Exercise Notice (as
defined in the Shareholders Agreements) (which has not been withdrawn within the relevant time
period permitted under the applicable Shareholders Agreement) with respect to which the specified
Call Price (as defined in the Shareholders Agreements) of the HoldCo Shares is less than or equal
to the Principal Amount Outstanding under the Bonds (provided that, for the avoidance of doubt, if
the issuer receives multiple Call Option Exercise Notices, the aggregate Call Price for all HoldCo
Shares subject to such Call Option Exercise Notices shall be used for the purposes of the foregoing
calculation);
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(ss)
|
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after the end of the Initial Period, exercise the Put Rights within 5 Business Days of
receipt of notification from the Cash Manager that there is a shortfall, which has not been
remedied by the Issuer within the period permitted in the Cash Management Agreement, between the
amounts anticipated to be required to be drawn under the Interest Letter of Credit on or prior to
the next two interest Payment Dates and the amounts available under the Interest Letter of Credit,
as calculated in accordance with the terms of the Cash Management Agreement;
|
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(tt)
|
|
in the event of the liquidation of a HoldCo in which no securities or other assets are
distributed, exercise the Put Rights immediately upon commencement of the Exercise Period;
|
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|
(uu)
|
|
if directed by the Trustee (who must be directed by an Extraordinary Resolution or
Written Resolution of the Bondholders), exercise the Put Rights during the Exercise Period if a
Toshiba Event (other than receipt of a Call Option Exercise Notice for which the specified Call
Price of the HoldCo Shares is greater than the Principal Amount Outstanding under the Bonds
(provided that, for the avoidance of doubt, if the Issuer receives multiple Call Option Exercise
Notices, the aggregate Call Price for all HoldCo Shares subject to such Call Option Exercise
Notices shall be used for the purposes of the foregoing calculation)) has occurred, within five
Business Days of being directed to do so by the Trustee;
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(vv)
|
|
exercise the Put Rights
during the Exercise Period if Toshiba or any of the other parties to the Shareholders Agreements
takes any action which has a Material Adverse Effect (as defined below);
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(ww)
|
|
draw on the available Letters of Credit in sufficient time to enable the Issuer to use the
proceeds of the Letters of Credit to pay (A) the Principal Amount Outstanding, (B) any accrued
interest, (C) any amounts due to the Swap Counterparty under the Swap Agreement (including any Swap
Termination Payments and gross-up payments to the Swap Counterparty), (D) ongoing fees and expenses
incurred by the Issuer, (E) amounts due to the Servicer under the Administrative Services
Agreement, (F) Default Interest, (G) payments due to the Bondholders under Condition 8, (H) the
Call Premium (if any) in accordance with the Pre-Enforcement
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- 14 -
|
|
|
Priority of Payments and
the Post-Enforcement Priority of Payments (as the case may be);
|
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(xx)
|
|
if, in any of the situations described in paragraphs (oo) to (vv) above, it decides to either
(i) exercise the Put Rights in part only or (ii) not to exercise the Put Rights at all, on or prior
to (x) the date on which it exercises the Put Rights in part or (y) the date on which it would
otherwise have been obliged to exercise the Put Rights, it shall be obliged to procure that a Put
Substitution Letter of Credit Bank issues a direct pay irrevocable letter of credit to the Trustee,
in form and substance satisfactory to the Trustee, for an amount equal to the aggregate of the
Principal Amount Outstanding under the Bonds and the Call Premium (if applicable) less amounts
available to be drawn under the Principal Letter of Credit (and, in the case of a partial exercise
only, the aggregate Put Price (as defined in the Put Option Agreements) for the HoldCo Shares
subject to such partial exercise);
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(yy)
|
|
in the event that the Swap Agreement is terminated, unless all the Rating Agencies
confirm in writing that such termination will not result in a downgrade in the ratings of any
Bonds, use reasonable endeavours to enter into a replacement swap agreement with a new counterparty
on substantially the same terms as the Swap Agreement;
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(zz)
|
|
file or procure a filing with the Registrar of Companies pursuant to Chapter I of Part XII of
the Companies Act 1985 of duly completed Forms 395 together with an executed original of the Deed
of Charge within the applicable time limit and file or procure a filing of the UCC-1 financing
statements with the Secretary of State of the State of Delaware;
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(aaa)
|
|
following receipt of a Non-extension Notice (under the Interest Letter of Credit, the
Principal Letter of Credit or any Put Substitution Letter of Credit), the Issuer shall draw the
Maximum Amount under the relevant Letter of Credit at least 30 days prior to the Stated Expiration
Date and deposit such amount into the Issuer Revenue Account, unless it has replaced (or caused to
be replaced) the relevant Letter of Credit with a new Letter of Credit in form and substance
satisfactory to the Trustee and issued by a financial institution whose senior-unsecured long-term
credit rating is at least Aa3 by Moodys and AA- or equivalent
by R&l (an
Eligible Bank
). Terms
used in this paragraph shall have the meaning given to such terms in the relevant Letter of
Credit;
|
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(bbb)
|
|
if the bank that has issued the Interest Letter of Credit, the Principal Letter of
Credit or
the Put Substitution Letter of Credit (if any) ceases to be an Eligible Bank (including
circumstances where a required credit rating has been withdrawn), arrange that an Eligible Bank
issues an irrevocable standby letter of credit in form and substance satisfactory to the Trustee in
replacement of the Letter of Credit issued by the relevant bank within 30 days of it ceasing to be
an Eligible Bank or draw the Maximum Amount under the relevant Letter of Credit and deposit such
amount into the Issuer Revenue Account;
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(ccc)
|
|
provide the Rating Agencies with notice of: (i) any termination, novation or assignment of,
or material amendment to, any of the Transaction Documents; (ii) any change in tax law referred to
in Condition 6(b); (iii) an Event of Default under the Bonds; or (iv) any resignation or
substitution of a party to any Transaction Document; and
|
- 15 -
|
(ddd)
|
|
promptly deposit any Acquisition Adjustment Amounts into a sub-account of the Issuer
Revenue Account and retain such amounts therein until the Bonds are redeemed whereupon such amounts
shall be applied in accordance with the Pre-Enforcement Priority of Payments or the
Post-Enforcement Priority of Payments (as the case may be) and the provisions of the Deed of
Charge.
|
14.2
|
|
Restrictions on the Issuer
|
|
|
|
For so long as any of the Bonds remain outstanding, the Issuer covenants to the holders of such
Bonds that (to the extent applicable) it will not, without the prior
written consent of the Trustee:
|
|
(a)
|
|
except as otherwise required or permitted by Clause 14.1, sell, factor, discount,
transfer, assign, lend or otherwise dispose of, nor create or permit to be outstanding any
mortgage, pledge, lien, charge, encumbrance or other security interest over, any of its property or
assets (including the HoldCo Shares) or any part thereof or interest therein;
|
|
|
(b)
|
|
agree to any share buyback, share repurchase, capital reduction or other
equivalent event in respect of a HoldCo, at a price per HoldCo Share less than the Put Price per
HoldCo Share under the terms of the Put Option Agreements where the Put Rights have been exercised
as a result of a Toshiba Event (as such price (being, as at the date hereof, JPY119,425,926
(equivalent) per HoldCo Share) may be adjusted from time to time under the terms of the Put Option
Agreements to take account of any stock dividend, split, reverse split, combination or
recapitalisation of the HoldCo Shares);
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|
|
(c)
|
|
engage in any business other than:
|
|
(i)
|
|
acquiring and holding any property, assets or rights that are capable of being effectively
charged in favour of the Trustee under the Security Documents;
|
|
|
(ii)
|
|
issuing and performing its obligations under the Bonds;
|
|
|
(iii)
|
|
entering into, exercising its rights and performing its obligations under or enforcing its
rights under the Bond Trust Deed and each other Transaction Document to which it is a party, as
applicable; or
|
|
|
(iv)
|
|
performing any act incidental to or necessary in connection with any of the above;
|
|
(d)
|
|
to the extent it has a Material Adverse Effect, permit the validity or effectiveness of any of
the Transaction Documents, or the priority of the security interests created thereby, to be
amended, terminated, postponed or discharged, or consent to any variation of, or exercise any
powers of consent or waiver pursuant to the terms of, or amend any term or condition of the Bonds
(save in accordance with the Conditions and the Bond Trust Deed) or any of the Transaction
Documents or permit any party to any of the Transaction Documents or the Security or any other
person
whose obligations form part of the Security to be released from such obligations or dispose of all
or any part of the Security;
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|
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Material Adverse Effect
means any effect which has or is reasonably likely to have a material
adverse effect on (a) the ability of the Issuer or Toshiba to perform and comply with any of its
obligations under the Transaction Documents to which it
|
- 16 -
|
|
is a party, (b) the validity,
legality or enforceability of any Transaction Document; and/or (c) the interests of the Secured
Creditors or the Issuer under or in connection with the Put Option Agreements (or, prior to
completion of the Underlying Acquisition, the Investment Agreements);
|
|
(e)
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agree to any amendment to any provision of, or grant any waiver or consent or exercise
any voting right under the Bond Trust Deed or any other Transaction Document to which it is a party
in a manner which has a Material Adverse Effect or agree to extend the date by which the Underlying
Acquisition must be completed to a date later than 27 October 2006;
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(f)
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incur any indebtedness for borrowed money other than in respect of the Bonds or the
Swap Agreement or give any guarantee or indemnity in respect of any indebtedness or of any
obligation of any person;
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(g)
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amend its constitutive documents;
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(h)
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have any subsidiaries (other than the HoldCos and their subsidiaries) or establish any
offices, branches or other establishments (as that term is used in article 2(h) of Council
Regulation (EC) No. 1346/2000 on Insolvency Proceedings) anywhere in the world except in the United
States of America;
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(i)
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have any employees;
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(j)
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enter into any reconstruction, amalgamation, merger or consolidation;
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(k)
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except as otherwise required or permitted by Clause 14.1, convey or transfer all or a
substantial part of its properties or assets (in one or a series of transactions) to any
person;
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(l)
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issue any membership interests (other than such membership interests as are in issue as
at the Closing Date) nor redeem or purchase any of its issued membership interests capital, nor
declare or pay any dividends or distributions, save any dividends or similar amounts received from
the HoldCos in respect of the HoldCo Shares prior to the occurrence of an Event of Default
(
Eligible Dividends
) and paid by the Issuer prior to the occurrence of an Event of Default;
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(m)
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enter into any material agreement or contract with any person (other than the
Transaction Documents);
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(n)
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terminate the Swap Documents prior to (a) the redemption of the Bonds in full or (b) providing
for the replacement of the Swap Agreement with a swap agreement on substantially the same terms
(including as to pricing) and in form and substance satisfactory to the Trustee;
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(o)
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release from or terminate the appointment of the Trustee under the Bond Trust Deed, the
Accounts Bank under the Account Bank Agreement, the Servicer under the Administrative Services
Agreement, the Principal Paying Agent, a Paying Agent or the Calculation Agent under the Agency
Agreement or the Cash Manager under the Cash Management Agreement;
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(p)
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enter into any lease in respect of, or own, premises;
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(q)
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have an interest in any bank account other than the Issuer Accounts, unless such account or
interest therein is charged to the Trustee on terms acceptable to it;
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(r)
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subscribe for new shares in the HoldCos, exercise any rights of first offer (in
accordance with section 7.04 of the Shareholders Agreements), exercise any call rights in respect
of the HoldCo Shares of another shareholder in either Holdco (in accordance with section 7.06 of
either Shareholders Agreement) or exercise any tag-along rights (in accordance with section 7.04 of
either Shareholders Agreement);
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(s)
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agree to the terms of any sale and purchase agreement with another shareholder of a
HoldCo which has served a Call Option Exercise Notice unless the provisions of Clause 14.1 (rr)
requiring exercise of the Put Rights do not apply;
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(t)
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serve an Exercise Notice other than as required in accordance with paragraphs (oo) to
(vv) of Clause 14.1;
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(u)
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apply the proceeds from the Interest Letter of Credit towards any payments other than those set
out in Condition 2 paragraphs (c) (i), (ii), (iii), (iv), (v) and (viii) and Condition 3 paragraphs
(i), (ii), (iii), (iv) and (vii);
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(v)
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make any election to choose or change its US federal income tax classification or take any
other action to cause it to be a corporation for US federal income tax purposes; or
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(w)
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on or prior to the service of a Bond Enforcement Notice, apply the proceeds from the
Principal Letter of Credit towards any payments other than those set out in Condition 2 paragraph
(c)(vi), and to the extent that the Principal Amount Outstanding under the Bonds and any Call
Premium have been paid in full, payments under Condition 2 paragraphs (c) (vii), (viii) and (ix).
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14.3
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Separateness Covenants
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The Issuer shall maintain its separate existence and, specifically, shall conduct its
affairs in accordance with the following:
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(a)
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The Issuer shall: (1) maintain and prepare separate financial reports (if any) and
financial statements (if any) in accordance with US GAAP, showing its assets and liabilities
separate and apart from those of any other person, and will not have its assets listed on the
financial statement of any other person (provided, however, that the Issuers assets may be
included in a consolidated financial statement of the Parent if inclusion on such consolidated
financial statement is required to comply with the requirements of US GAAP, but only if (x) such
consolidated financial statement shall be appropriately footnoted to the effect that the Issuers
assets are owned by the Issuer, are not available to satisfy the debts and other obligations of the
Parent, affiliate or any other person or entity, and that they are being included on the
consolidated financial statement of the Parent to comply with the requirements of US GAAP, and (y)
such assets shall be listed on the Issuers own separate balance sheet); (2) maintain its books,
records and bank accounts separately from those of its affiliates and any other person; (3) not
permit any affiliate or any other Person independent access to its bank accounts, except as
specifically provided in the Transaction Documents; and (4) file its own tax returns separate from
those of any other person or entity, except to the extent that the Issuer is treated as a
disregarded entity for tax purposes or is not otherwise required to file tax returns under
applicable law.
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(b)
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The Issuer shall not commingle or pool any of its funds or assets with those of any
affiliate or any other person, and it shall hold all of its assets in its own name.
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(c)
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The Issuer shall conduct its own business in its own name and shall not operate, or
purport to operate, collectively as a single business entity with respect to any person.
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(d)
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The Issuer shall, insofar as is consistent with commercial and
business circumstances affecting its business and financial condition, remain solvent and pay its
own debts, liabilities and expenses (including overhead expenses, if any) only out of its own
assets as the same shall become due; provided that this covenant shall not constitute a guaranty or
keep well obligation of the Parent, affiliate, any administrator of or with respect to the Issuer
or any other person in respect of the Issuer or its debt, liabilities or expenses, or any financial
or balance sheet condition or ratio of or relating to the Issuer.
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(e)
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The Issuer has done, or causes to be done, and shall do, or cause to be done, all things
necessary to observe all Delaware limited liability company formalities and other organisational
formalities, and preserve its existence, and it shall not, nor shall it permit any affiliate or any
other person to, amend, modify or otherwise change the limited liability agreement in a manner
which would adversely affect the existence of the Issuer as a special
purpose entity.
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(f)
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The Issuer does not, and shall not, (i) guarantee, become obligated for, or hold itself
or its credit out to be responsible for or available to satisfy, the debts or obligations of any
other person or (ii) control the decisions or actions respecting the daily business or affairs of
any other person except as permitted by or pursuant to the Transaction Documents.
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(g)
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The Issuer shall, to the extent it utilizes stationery, invoices and checks,
maintain and utilize separate stationery, invoices and checks bearing its own name.
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(h)
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The Issuer shall, at all times, hold itself out to the public as a legal entity separate and
distinct from any other person and shall correct any known misunderstanding regarding its separate
identity.
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(i)
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The Issuer shall not identify itself as a division of any other person.
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(j)
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The Issuer shall maintain its assets in such a manner that it will not be costly or difficult
to segregate, ascertain or identify its individual assets from those of any affiliate or any other
person.
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(k)
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The Issuer shall not use its separate existence to abuse creditors or to perpetrate a
fraud, injury or injustice on creditors in violation of applicable law.
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(l)
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The Issuer shall not, in connection with the Transaction Documents, act with an intent
to hinder, delay or defraud any of its creditors in violation of applicable law.
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(m)
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The Issuer shall maintain an arms length relationship with its affiliates and the
Parent.
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(n)
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The Issuer shall not grant a security interest or otherwise pledge its assets for the
benefit of any other person, except as permitted by or pursuant to the Bond Documents.
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(o)
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The Issuer shall not acquire any securities or debt instruments of the Parent or
its affiliates other than the Issuers subsidiaries.
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(p)
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The Issuer shall not make loans or advances to any person, except as permitted by or
pursuant to the Bond Documents.
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(q)
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The Issuer shall make no transfer of its assets except as permitted by or
pursuant to the Transaction Documents.
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14.4
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The Issuer warrants to the Trustee that:
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(a)
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as of the Closing Date, it is not required to withhold or deduct any amount for or on
account of Delaware tax from payments it is liable to make in respect of the Bonds;
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(b)
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it is resident for tax purposes in the United States of America only;
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(c)
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it will not be subject to any tax imposed under the laws of any State of the
United States or any political subdivision thereof;
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(d)
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it is the legal and beneficial owner of all its assets charged, assigned or
otherwise secured pursuant to the Security Documents;
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(e)
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it has taken all necessary steps to enable it to charge or assign as security the
Charged Property in accordance with clause 3 of the Deed of Charge; and
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(f)
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it has taken no action or steps to prejudice its right, title and interest in
and to the Charged Property and the Security.
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15
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Remuneration and Indemnification of Trustee
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15.1
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The Issuer shall pay to the Trustee remuneration for its services as trustee as
from the date of this Bond Trust Deed, such remuneration to be paid annually in advance on the
anniversary date of this Bond Trust Deed and at such rate and to be paid on such dates as may from
time to time be agreed between the Issuer and the Trustee. Such remuneration shall accrue from day
to day and be payable up to and including the date when, all the Bonds having become due for
redemption in full, the redemption moneys and interest thereon to the date of redemption have been
paid to the Principal Paying Agent or, as the case may be, the Trustee, provided that, if upon due
presentation of any Bond in accordance with the Conditions, payment of the moneys due in respect
thereof is improperly withheld or refused, remuneration will commence again to accrue.
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15.2
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In the event of the occurrence of an Event of Default or a Potential Event of
Default or the Trustee considering it expedient or necessary or being requested by the Issuer to
undertake duties which the Trustee and the Issuer agree to be of an exceptional nature or otherwise
outside the scope of the normal duties of the Trustee under these presents the Issuer shall pay to
the Trustee such additional remuneration as shall be agreed between them.
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15.3
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The Issuer shall in addition pay to the Trustee an amount equal to the amount of
any VAT or similar tax chargeable in respect of its remuneration under these presents.
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15.4
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In the event of the Trustee and the Issuer failing to agree:
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(a)
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(in a case to which Clause 15.1 above applies) upon the amount of the
remuneration; or
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(b)
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(in a case to which Clause 15.2 above applies) upon whether such duties shall be of an
exceptional nature or otherwise outside the scope of the normal duties of the Trustee under these
presents, or upon such additional remuneration,
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such matters shall be determined by a merchant or investment bank (acting as an expert and
not as an arbitrator) selected by the Trustee and approved by the Issuer or, failing such approval,
nominated (on the application of the Trustee) by the President for the time being of The Law
Society of England and Wales (the expenses involved in such nomination and the fees of such
merchant or investment bank being payable by the Issuer) and the determination of any such merchant
or investment bank shall be final and binding upon the Trustee and the Issuer.
15.5
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Indemnity:
The Issuer will on demand by the Trustee indemnify it in respect of Amounts or
Claims paid or incurred by it in acting as trustee under this Trust Deed (including (1) any
Agent/Delegate Liabilities and (2) in respect of disputing or defending any Amounts or Claims made
against the Trustee or any Agent/Delegate Liabilities). The Issuer will on demand by such agent or
delegate indemnify it against such Agent/Delegate Liabilities.
Amounts or Claims
are losses,
liabilities, costs, claims, actions, demands or expenses and
Agent/Delegate Liabilities
are
Amounts or Claims which the Trustee is or would be obliged to pay or reimburse to any of its agents
or delegates appointed pursuant to this Trust Deed. The Contracts (Rights of Third Parties) Act
1999 applies to this sub-Clause 15.5.
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15.6
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All amounts payable pursuant to Clause 15.5 shall be payable by the Issuer on the
date specified in a demand by the Trustee and in the case of payments actually made by the Trustee
or an Indemnifying Party prior to such demand shall carry interest at the rate of three per cent
per annum above the base rate (on the date on which payment was made by the Trustee) of National
Westminster Bank plc from the date such demand is made, and in all other cases shall (if not paid
within 30 days after the date of such demand or, if such demand specifies that payment is to be
made on an earlier date, on such earlier date) carry interest at such rate from such 30th day or
such earlier date specified in such demand. All remuneration payable to the Trustee shall carry
interest at such rate from the due date therefor.
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15.7
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Unless otherwise
specifically stated in any discharge of these presents the provisions of this Clause 15 shall
continue in full force and effect notwithstanding such discharge.
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16
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Supplement to Trustee Acts
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The Trustee shall have all the powers conferred upon trustees by the Trustee Act 1925 and
the Trustee Act 2000 of England and Wales (together, the
Trustee Acts).
Where there are any
inconsistencies between the Trustee Acts and the provisions of these presents, the provisions of
these presents shall, to the extent allowed by law, prevail and, in the case of any such
inconsistency with the Trustee Act 2000 of England and Wales, the provisions of these presents
shall constitute a restriction or exclusion for the purposes of that
Act. The Trustee shall have
all the powers conferred upon trustees by the Trustee Acts and by way of supplement thereto it is
expressly declared as follows:
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(a)
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The Trustee may in relation to these presents act on the advice or opinion of, or a certificate
or report from, or any information obtained from, any lawyer, valuer, accountant, surveyor, banker,
broker, auctioneer or other expert, whether obtained
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- 21 -
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by the Issuer, the Trustee or
otherwise and whether addressed to the Trustee or not, and shall not be responsible for any
Liability occasioned by so acting.
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(b)
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Any such advice, opinion or information may be sent or obtained by letter, telex, telegram,
facsimile transmission, cable or e-mail and the Trustee shall not be liable for acting on any
advice, opinion or information purporting to be conveyed by any such letter, telex,
telegram, facsimile transmission, cable or e-mail although the same shall contain some error or
shall not be authentic.
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(c)
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The Trustee may call for and shall be at liberty to accept as sufficient evidence of any fact
or matter or the expediency of any transaction or thing which is
prima facie
within the knowledge
of a party to any of the Transaction Documents a certificate signed by two Officers or directors of
such party and the Trustee shall not be bound in any such case to call for further evidence or be
responsible for any Liability that may be occasioned by it or any other person acting on such
certificate.
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(d)
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The Trustee shall be at liberty to hold these presents and the other Transaction
Documents and any other documents relating thereto or to deposit them in any part of the world with
any banker or banking company or company whose business includes undertaking the safe custody of
documents or lawyer or firm of lawyers considered by the Trustee to be of good repute and the
Trustee shall not be responsible for or required to insure against any Liability incurred in
connection with any such holding or deposit and may pay all sums required to be paid on account of
or in respect of any such deposit.
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(e)
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The Trustee shall not be responsible for the receipt or application of the
proceeds of the issue of any of the Bonds by the Issuer, the exchange of any Global Bond for
another Global Bond or Definitive Bonds or the delivery of any Global Bond or Definitive Bonds to
the person(s) entitled to it or them.
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(f)
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The Trustee shall not be bound to give notice to any person of the execution of
any documents comprised or referred to in these presents or any other Transaction Document or to
take any steps to ascertain whether any Event of Default or Potential Event of Default or any event
which causes or may cause a right on the part of the Trustee under or in relation to any
Transaction Document to become exercisable has happened and, until it shall have actual knowledge
or express notice pursuant to these presents to the contrary, the Trustee shall be entitled to
assume that no Event of Default or Potential Event of Default has happened and that the Issuer and
each of the other parties are observing and performing all their respective obligations under these
presents and, if it does have actual knowledge or express notice as aforesaid, the Trustee shall
not be bound to give notice thereof to the Bondholders.
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(g)
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Save as expressly otherwise provided in these presents, the Trustee shall have
absolute and uncontrolled discretion as to the exercise or non-exercise of its trusts, rights,
powers, authorities and discretions under these presents and the other Transaction Documents (the
exercise or non-exercise of which as between the Trustee and the Bondholders shall be conclusive
and binding on the Bondholders) and shall not be responsible for any Liability which may result
from their exercise or non-exercise and in particular the Trustee shall not be bound to act at the
request or direction of the Bondholders or otherwise under any provision of these presents or to
take at such request or direction or otherwise any other action under any
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- 22 -
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provision of
these presents, without prejudice to the generality of Clause 9.1, unless it shall first be secured
and/or indemnified to its satisfaction against all liabilities to which it may render itself liable
or which it may incur by doing so.
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(h)
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The Trustee shall not be liable to any person by reason of having acted upon any Extraordinary
Resolution in writing or any Extraordinary or other resolution purporting to have been passed at
any meeting of Bondholders in respect whereof minutes have been made and signed or any direction of
Bondholders even though subsequent to its acting it may be found that there was some defect in the
constitution of the meeting or the passing of the resolution or that for any reason the resolution,
direction or request was not valid or binding
upon such Bondholders.
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(i)
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The Trustee shall not be liable to any person by reason of having accepted as valid or
not having rejected any Security purporting to be such and subsequently found to be forged or not
authentic.
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(j)
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The Trustee shall not (unless and to the extent ordered so to do by a court of competent
jurisdiction) be required to disclose to any Bondholder any information (including, without
limitation, information of a confidential, financial or price sensitive nature) made available to
the Trustee by the Issuer or any other person in connection with these presents and the other
Transaction Documents and no Bondholder shall be entitled to take any action to obtain from the
Trustee any such information.
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(k)
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Where it is necessary or desirable for any purpose in connection with these presents to
convert any sum from one currency to another it shall (unless otherwise provided by these presents
or required by law) be converted at such rate or rates, in accordance with such method and as at
such date for the determination of such rate of exchange, as may be agreed by the Trustee in
consultation with the Issuer and any rate, method and date so agreed shall be binding on the Issuer
and the Bondholders.
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(l)
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The Trustee may certify that any of the conditions, events and acts set out in
subparagraph (b) of Condition 9 (each of which conditions, events and acts shall, unless in any
case the Trustee in its absolute discretion shall otherwise determine, for all the purposes of
these presents be deemed to include the circumstances resulting therein and the consequences
resulting therefrom) is in its opinion incapable of remedy and/or materially prejudicial to the
interests of the Bondholders and any such certificate shall be conclusive and binding upon the
Issuer and the Bondholders. To the extent that the Trustee is instructed to take any action
pursuant to an Extraordinary Resolution of Bondholders, and any such action requires the
determination of whether an event or occurrence has had a Material Adverse Effect, the Trustee
shall have no duty to enquire or satisfy itself as to the existence of an event or occurrence
having a Material Adverse Effect, shall be entitled to rely conclusively upon such Extraordinary
Resolution of the Bondholders regarding the same and shall bear no liability of any nature
whatsoever to any person for acting upon such Extraordinary Resolution of the Bondholders.
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(m)
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The Trustee as between itself and the Bondholders may determine all questions and doubts
arising in relation to any of the provisions of these presents or any
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- 23 -
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other Transaction Document. Every such determination, whether or not relating in
whole or in part to the acts or proceedings of the Trustee, shall be conclusive and shall
bind the Trustee and the Bondholders.
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(n)
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In connection with the exercise or performance by it of any right, power, trust, authority,
duty or discretion under or in relation to these presents or any other Transaction Documents:
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(i)
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(including, without limitation, any consent, approval, modification, waiver,
authorisation or determination referred to in Clause 19), the Trustee shall have
regard to the general interests of the Bondholders and shall not have regard to any
interests arising from circumstances particular to individual Bondholders (whatever
their number) and, in particular but without limitation, shall not have regard to the
consequences of any such exercise for individual Bondholders (whatever their number)
resulting from their being for any purpose domiciled or resident in, or otherwise
connected with, or subject to the jurisdiction of, any particular territory or any
political sub-division thereof and the Trustee shall not be entitled to require, nor
shall any Bondholder be entitled to claim, from the Issuer, the Trustee or any other
person any indemnification or payment in respect of any tax consequence of any such
exercise upon individual Bondholders; and
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(ii)
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(excluding any consent, approval, modification, waiver, authorisation or
determination referred to in Clause 19), the Trustee shall have regard, except where
expressly provided otherwise, to the interests of the Bondholders equally; and
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(iii)
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except where expressly provided otherwise, and except in respect of the
Swap Counterparty, so long as any of the Bonds remain outstanding, the Trustee is not
required to have regard to the interests of any other persons entitled to the benefit
of the Security.
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(o)
|
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Any trustee of these presents being a lawyer, accountant, broker or other person engaged in
any profession or business shall be entitled to charge and be paid all usual professional and
other charges for business transacted and acts done by him or his firm in connection with
these presents or any other Transaction Document and also his proper charges in addition to
disbursements for all other work and business done and all time spent by him or his firm in
connection with matters arising in connection with these presents or any other Transaction
Document.
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(p)
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The Trustee may whenever it thinks fit delegate by power of attorney or otherwise to any
person or persons or fluctuating body of persons (whether being a joint trustee of these
presents or not) all or any of its trusts, rights, powers, authorities and discretions under
these presents or any other Transaction Document. Such delegation may be made upon such terms
(including power to sub-delegate) and subject to such conditions and regulations as the
Trustee may in the interests of the Bondholders think fit. The Trustee shall not be under any
obligation to supervise the proceedings or acts of any such delegate or sub-delegate or be in
any way responsible for any Liability incurred by reason of any misconduct, omission or
default on the part of any such delegate or sub-delegate. The Trustee shall within a
reasonable time after any such delegation or any renewal, extension or termination thereof
give notice thereof to the Issuer.
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(q)
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The Trustee may in relation to these presents or any other Transaction Document instead
of acting personally employ and pay an agent (whether being a lawyer or other professional
person) to transact or conduct, or concur in transacting or conducting, any business and to
do, or concur in doing, all acts required to be done in connection with these presents or
any other Transaction Document (including the receipt and payment of money). The Trustee
shall not be under any obligation to supervise the proceedings or acts of any such agent or
be in any way responsible for any Liability incurred by reason of any misconduct, omission
or default on the part of any such agent.
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(r)
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The Trustee may appoint and pay any person to act as a custodian or nominee on any terms in
relation to such assets of the trusts constituted by these presents as the Trustee may
determine. The Trustee shall not be under any obligation to supervise the proceedings or acts
of any such person or be in any way responsible for any Liability incurred by reason of any
misconduct, omission or default on the part of any such person. The Trustee is not obliged to
appoint a custodian if the Trustee invests in securities payable to bearer.
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(s)
|
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The Trustee shall not have any responsibility for, or have any duty to make any
investigation in respect of, or in any way be liable whatsoever for:
|
|
(i)
|
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the nature, status, creditworthiness or solvency of the Issuer or any other
party to any Transaction Document;
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(ii)
|
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the execution, delivery, legality, validity, adequacy, admissibility in
evidence, enforceability, genuineness, effectiveness or suitability of any Transaction
Document or any other document entered into in connection therewith or of any
transfer, security or trust effected or constituted or purported to be effected or
constituted by any Transaction Document or any other document entered into in
connection therewith;
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(iii)
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the title to, or the ownership, value, sufficiency or existence of any
property comprised or intended to be comprised in the security constituted or
purported to be constituted by any Transaction Document;
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(iv)
|
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the registration, filing, protection or perfection of the security
constituted or purported to be constituted by any Transaction Document or the priority
of any such security, whether in respect of any initial advance or any subsequent
advance or any other sums or liabilities;
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(v)
|
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the scope or accuracy of any recital, representation, warranty or statement
made by or on behalf of any person in any Transaction Document or any other document
entered into in connection therewith;
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(vi)
|
|
the failure by any person to obtain or comply with any licence, consent or
other authority in connection with any Transaction Document;
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(vii)
|
|
the failure to call for delivery of documents of title to or require any
transfers, legal mortgages, charges or other further assurances pursuant to the
provisions of any Transaction Documents; or
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(viii)
|
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any accounts, books, records or files maintained by any person in connection with
or in respect of any property comprised or intended to be
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- 25 -
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comprised in the security constituted or purported to be constituted by any
Transaction Documents.
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(t)
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The Trustee may call for any certificate or other document to be issued by Euroclear or
Clearstream, Luxembourg as to the Principal Amount Outstanding of Bonds standing to the
account of any person. Any such certificate or other document shall, in the absence of
manifest error, be conclusive and binding for all purposes. Any such certificate or other
document may comprise any form of statement or print out of electronic records provided by the
relevant clearing system (including Euroclears EUCLID or Clearstream, Luxembourgs Cedcom
system) in accordance with its usual procedures and in which the holder of a particular
Principal Amount Outstanding of Bonds is clearly identified together with the amount of such
holding. The Trustee shall not be liable to any person by reason of having accepted as valid
or not having rejected any certificate or other document to such effect purporting to be
issued by Euroclear or Clearstream, Luxembourg and subsequently found to be forged or not
authentic.
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(u)
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Except where the receipt of the same by the Trustee is expressly provided for in these
presents or any other Transaction Document, the Trustee shall not be responsible to any person
for failing to request, require or receive any legal opinion relating to the Bonds or any
Transaction Document or any search, report, certificate, advice, valuation, investigation or
information relating to any Transaction Document, any transaction contemplated by any
Transaction Document, any party to any Transaction Document or any of such partys assets or
liabilities. The Trustee shall in no circumstances be responsible to any person for checking
or commenting upon the content of any such legal opinion, search, report, certificate, advice,
valuation, investigation or information or for ensuring disclosure to the Bondholders of such
content or any part of it or for determining the acceptability of such content or any part of
it to any Bondholder and shall not be responsible for any Liability incurred thereby.
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(v)
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Any corporation into which the Trustee shall be merged or with which it shall be
consolidated or any company resulting from any such merger or consolidation shall be a party
hereto and shall be the Trustee under these presents without executing or filing any paper or
document or any further act on the part of the parties hereto.
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(w)
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No provision of these presents or any other Transaction Document shall:
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(i)
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require the Trustee to do anything which may be illegal or contrary to
applicable law or regulation or prevent the Trustee from doing anything which is
necessary or desirable to comply with any applicable law or regulation; or
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(ii)
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require the Trustee, and the Trustee shall not be bound, to do anything which
may cause it to expend or risk its own funds or otherwise incur any Liability in the
performance of any of its duties or in the exercise of any of its rights, powers,
authorities or discretions or otherwise in connection with these presents or any other
Transaction Document (including, without limitation, forming any opinion or employing
any such person as is referred to in Clause 16(a)), if it shall believe that repayment
of such funds is not assured to it or it is not indemnified to its satisfaction
against such Liability and, for this purpose, the Trustee may demand prior to taking
any such
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action, that there be paid to it in advance such sums as it considers
(without prejudice to any further demand) shall be sufficient so to
indemnify it.
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(x)
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Unless notified to the contrary, the Trustee shall be entitled to assume
without enquiry (other than requesting a certificate pursuant to Clause 14.1(n) that
no Bonds are held by, for the benefit of, or on behalf of, the Issuer, any holding
company or any other subsidiary of such holding company.
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(y)
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The Trustee shall have no responsibility whatsoever to the Issuer, any
Bondholder or any other person for the maintenance of or failure to maintain any
rating of any of the Bonds by any Rating Agency.
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(z)
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Any advice, opinion, certificate, report or information called for by or
provided to the Trustee (whether or not addressed to the Trustee) in accordance with
or for the purposes of these presents or any other Transaction Document may be relied
upon by the Trustee notwithstanding that such advice, opinion, certificate, report or
information and/or any engagement letter or other document entered into or accepted by
the Trustee in connection therewith contains a monetary or other limit on the
liability of the person providing the same in respect thereof and notwithstanding that
the scope and/or basis of such advice, opinion, certificate, report or information may
be limited by any such engagement letter or other document or by the terms of the
advice, opinion, certificate, report or information itself.
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(aa)
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The Trustee shall not be liable or responsible for any Liabilities or
inconvenience which may result from anything done or omitted to be done by it in
accordance with the provisions of these presents.
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(bb)
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The Trustee shall be entitled to take into account, for the purpose of
exercising or performing any right, power, trust, authority, duty or discretion under
or in relation to the Conditions or any of the Transaction Documents (including,
without limitation, any consent, approval, modification, waiver, authorisation or
determination referred to in Clause 19) in respect of the Bonds, among other things,
any confirmation by any of the Rating Agencies (if available) that the then current
ratings of any class of the Bonds would not be adversely affected by such exercise or
performance and, if the original rating of Bonds has been downgraded previously, that
such exercise or performance would not prevent the restoration of the original ratings.
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17
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Trustees Liability
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Section 1 of the Trustee Act 2000 shall not apply to the duties of the Trustee in
relation to the trusts constituted by these presents or any other Transaction Documents,
provided that nothing in these presents shall in any case in which the Trustee has failed to
show the degree of care and diligence required of it as trustee having regard to the
provisions of these presents and the other Transaction Documents conferring on it any
trusts, powers, authorities or discretions exempt the Trustee from or indemnify it against
any liability for breach of trust or any liability which by virtue of any rule of law would
otherwise attach to it in respect of any negligence, wilful default or breach of duty of
which it may be guilty in relation to its duties under these presents.
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18
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Trustee Contracting with the Issuer and Others
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Neither the Trustee nor any director or officer or holding company, subsidiary or
associated company of a corporation acting as a trustee under these presents shall by reason
of its or his fiduciary position be in any way precluded from:
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(a)
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entering into or being interested in any contract or financial or other
transaction or
arrangement with the Issuer or any other party to any Transaction Document (each
a
Relevant Company
) or any person or body corporate associated with a
Relevant Company (including without limitation any contract, transaction or
arrangement of a banking or insurance nature or any contract, transaction or
arrangement in relation to the making of loans or the provision of financial
facilities
or financial advice to, or the purchase, placing or underwriting of or the
subscribing
or procuring subscriptions for or otherwise acquiring, holding or dealing with, or
acting as paying agent in respect of, the Bonds or any other Bonds, bonds, stocks,
shares, debenture stock, debentures or other securities of, a Relevant Company or
any person or body corporate associated as aforesaid); or
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(b)
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accepting or holding the trusteeship of the Deed of Charge or any other Bond
Trust
Deed constituting or securing any other securities issued by or relating to, or any
other liabilities of, a Relevant Company or any person or body corporate
associated as aforesaid or any other office of profit under a Relevant Company or
any such person or body corporate associated as aforesaid,
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and shall be entitled to exercise and enforce its rights, comply with its obligations and
perform its duties under or in relation to any such contract, transaction or arrangement as
is referred to in (a) above or, as the case may be, any such trusteeship or office of profit
as is referred to in (b) above without regard to the interests of the Bondholders and
notwithstanding that the same may be contrary or prejudicial to the interests of the
Bondholders and shall not be responsible for any Liability occasioned to the Bondholders
thereby and shall be entitled to retain and shall not be in any way liable to account for
any profit made or share of brokerage or commission or remuneration or other amount or
benefit received thereby or in connection therewith.
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Where any holding company, subsidiary or associated company of the Trustee or any director
or officer of the Trustee acting other than in his capacity as such a director or officer
has any information, the Trustee shall not thereby be deemed also to have knowledge of such
information and, unless it shall have actual knowledge of such information, shall not be
responsible for any loss suffered by Bondholders resulting from the Trustees failure to
take such information into account in acting or refraining from acting under or in relation
to these presents or any other Transaction Document.
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19
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Waiver, Authorisation and Determination
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19.1
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Determination
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The Trustee may without the consent or sanction of the Bondholders and without
prejudice to its rights in respect of any subsequent breach, Event of Default or Potential
Event of Default at any time and from time to time but only if and in so far as in its
opinion the interests of the Bondholders shall not be materially prejudiced thereby waive or
authorise any breach or proposed breach by the Issuer or any other person of any of the
covenants or provisions contained in these presents or any other Transaction Document or
determine that any Event of Default or Potential Event of Default shall not be treated as
such for the
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purposes of these presents, provided that the Trustee shall not exercise any powers
conferred on it by this Clause in contravention of any express direction given by
Extraordinary Resolution or by a direction under Condition 9
(Events of Default)
but so
that no such direction or request shall affect any waiver, authorisation or determination
previously given or made. Any such waiver, authorisation or determination may be given or
made on such terms and subject to such conditions (if any) as the Trustee may determine,
shall be binding on the Bondholders and, if, but only if, the Trustee shall so require,
shall be notified by the Issuer to the Bondholders in accordance with the Conditions as
soon as practicable thereafter.
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19.2
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Modification
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The Trustee may without the consent or sanction of the Bondholders at any time and
from time to time concur with the Issuer or any other person in making any modification (i)
to these presents (including any Basic Terms Modification) or any other Transaction
Document which in the opinion of the Trustee may be proper to make, provided that the
Trustee is of the opinion that such modification will not be materially prejudicial to the
interests of the Bondholders or (ii) to these presents (including any Basic Terms
Modification) or any other Transaction Document if in the opinion of the Trustee such
modification is of a formal, minor or technical nature or to correct a manifest error. Any
such modification may be made on such terms and subject to such conditions (if any) as the
Trustee may determine, shall be binding upon the Bondholders and shall be notified by the
Issuer to the Bondholders in accordance with the Conditions (unless the Trustee agrees
otherwise) and to the Rating Agencies, in each case as soon as practicable thereafter.
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19.3
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Consent
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Any consent or approval given by the Trustee for the purposes of these presents or
any other Transaction Document may be given on such terms and subject to such conditions (if
any) as the Trustee thinks fit and notwithstanding anything to the contrary in these
presents or any other Transaction Document may be given retrospectively. The Trustee may
give any consent or approval if, in its opinion, the interests of the Bondholders will not
be materially prejudiced thereby. For the avoidance of doubt, the Trustee shall not have any
duty to the Bondholders in relation to such matters other than that which is contained in
the preceding sentence.
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19.4
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Breach
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Any breach of or failure, on the part of the Issuer, to comply with any such terms
and conditions as are referred to in Clauses 19.1, 19.2 and 19.3 shall constitute a default
by the Issuer in the performance or observance of a covenant or provision binding on it
under or pursuant to these presents.
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20
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Entitlement to Treat Bondholder as Absolute Owner
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The Issuer, the Trustee and the Paying Agents may (to the fullest extent permitted by
applicable laws) deem and treat the holder of a particular Principal Amount Outstanding of
the Bonds as the absolute owner of such Bond or, as the case may be, Principal Amount
Outstanding for all purposes (whether or not such Bond or, as the case may be, Principal
Amount Outstanding shall be overdue and notwithstanding any notice of ownership thereof or
of trust or other interest with regard thereto, any notice of loss or theft thereof or any
writing thereon) and the Issuer, the Trustee and the Paying Agents shall not be affected by
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any notice to the contrary. All payments made to, or to the order of, the common depository
for Euroclear and Clearstream, Luxembourg with which any Global Bond is deposited shall be
valid and, to the extent of the sums so paid, effective to satisfy and discharge the
liability for the moneys payable in respect of such Global Bond and the Bonds represented
thereby.
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21
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Currency Indemnity
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The Issuer shall indemnify the Trustee and the Bondholders and keep them indemnified
against:
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(a)
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any Liability incurred by any of them arising from the non-payment by the
Issuer of
any amount due to the Trustee or the Bondholders under these presents by reason
of any variation in the rates of exchange between those used for the purposes of
calculating the amount due under a judgment or order in respect thereof and those
prevailing at the date of actual payment by the Issuer; and
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(b)
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any deficiency arising or resulting from any variation in rates of exchange
between
(i) the date as of which the local currency equivalent of the amounts due or
contingently due under these presents (other than this Clause) is calculated for the
purposes of any bankruptcy, insolvency or liquidation of the Issuer and (ii) the
final
date for ascertaining the amount of claims in such bankruptcy, insolvency or
liquidation. The amount of such deficiency shall be deemed not to be reduced by
any variation in rates of exchange occurring between the said final date and the
date of any distribution of assets in connection with any such bankruptcy,
insolvency or liquidation.
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The above indemnity shall constitute an obligation of the Issuer separate and independent
from its obligations under the other provisions of these presents and shall apply
irrespective of any indulgence granted by the Trustee or the Bondholders from time to time
and shall continue in full force and effect notwithstanding the judgment or filing of any
proof or proofs in any bankruptcy, insolvency or liquidation of the Issuer for a liquidated
sum or sums in respect of amounts due under these presents (other than this Clause). Any
such deficiency as aforesaid shall be deemed to constitute a loss suffered by the
Bondholders and no proof or evidence of any actual loss shall be required by the Issuer or
its liquidator or liquidators.
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22
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New Trustee
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22.1
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The power to appoint a new trustee of these presents shall, subject as hereinafter
provided, be vested in the Issuer but no person shall be appointed who shall not previously
have been approved by Extraordinary Resolutions of the Bondholders. One or more persons may
hold office as trustee or trustees of these presents but such trustee or trustees shall be or
include a Trust Corporation. Whenever there shall be more than two trustees of these presents
the majority of such trustees shall be competent to execute and exercise all the duties,
powers, trusts, authorities and discretions vested in the Trustee by these presents provided
that a Trust Corporation shall be included in such majority. Any appointment of a new trustee
of these presents shall as soon as practicable thereafter be notified by the Issuer to the
Principal Paying Agent, and the Bondholders in accordance with the Conditions.
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22.2
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Separate and Co-Trustees
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Notwithstanding the provisions of Clause 22.1 above, the Trustee may, upon giving prior
notice to the Issuer (but without the consent of the Issuer or the Bondholders), appoint
any person established or resident in any jurisdiction (whether a Trust Corporation or not)
to act either as a separate trustee or as a co-trustee jointly with the Trustee:
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(a)
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if the Trustee considers such appointment to be in the interests of the Secured
Creditors;
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(b)
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for the purposes of conforming to any legal requirements, restrictions or
conditions
in any jurisdiction in which any particular act or acts is or are to be performed or
any Charged Property is to be located; or
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(c)
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for the purposes of obtaining a judgment in any jurisdiction or the enforcement
in
any jurisdiction of either a judgment already obtained or any of the provisions of
these presents or any other Transaction Document against the Issuer or any other
person.
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The Issuer irrevocably appoints the Trustee to be its attorney in its name and on its behalf
to execute any such instrument of appointment. Such a person shall (subject always to the
provisions of these presents and the other Transaction Documents) have such rights, powers,
trusts, authorities and discretions (not exceeding those conferred on the Trustee by these
presents and the other Transaction Documents) and such duties and obligations as shall be
conferred or imposed by the instrument of appointment. The Trustee shall have power in like
manner to remove any such person. Such remuneration as the Trustee may pay to any such
person, together with any attributable Liabilities incurred by it in performing its function
as such separate trustee or co-trustee, shall for the purposes of these presents be treated
as Liabilities incurred by the Trustee.
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23
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Trustees Retirement and Removal
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A trustee of these presents may retire at any time on giving not less than 60 days prior
written notice to the Issuer without giving any reason and without being responsible for
any Liabilities incurred by reason of such retirement. The Bondholders may by an
Extraordinary Resolution remove any trustee or trustees for the time being of these
presents. The Issuer undertakes that, in the event of the only trustee of these presents
which is a Trust Corporation (for the avoidance of doubt, disregarding for this purpose any
separate or co-trustee appointed under Clause 22.2) giving notice under this Clause or
being removed by Extraordinary Resolution of the Bondholders, it will use its best
endeavours to procure that a new trustee of these presents being a Trust Corporation is
appointed as soon as reasonably practicable thereafter. The retirement or removal of any
such trustee shall not become effective until a successor trustee being a Trust Corporation
is appointed. If, in such circumstances, no appointment of such a new trustee has become
effective within 60 days of the date of such notice or Extraordinary Resolution, the
Trustee shall be entitled to appoint a Trust Corporation as trustee of these presents, but
no such appointment shall take effect unless previously approved by Extraordinary
Resolution as aforesaid.
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24
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Trustees Powers to be Additional
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The powers conferred upon the Trustee by these presents shall be in addition to any
powers which may from time to time be vested in the Trustee by the general law or as a
holder of any of the Bonds.
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25
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Notices
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Any notices shall be given in writing and shall be sufficiently secured or given if
made as specified in Schedule 6.
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26
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Limited Recourse and Non-Petition
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26.1
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The obligations of the Issuer under the Bonds and the Bond Documents will not be obligations or responsibilities of, or guaranteed by, Shaw Group any other person or entity,
and the Secured Creditors shall have no recourse to Shaw Group beyond the pledge by
The Shaw Group Inc. of its membership interests in the Issuer pursuant to the Parent
Pledge Agreement.
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26.2
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Having realised the Security and distributed the net proceeds in accordance with the terms
of the Deed of Charge, neither the Trustee nor any other Secured Creditor may take any
further steps against the Issuer to recover any sum still unpaid and the Issuers liability
for
any sum still unpaid shall be extinguished.
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26.3
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None of the Trustee or any other Secured Creditor may take any corporate action or other
steps or legal proceedings for the dissolution, liquidation or reorganisation of, or for the
appointment of a receiver, administrator, trustee, liquidator or similar official for, the Issuer
under any bankruptcy, insolvency, receivership or similar law.
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27
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Governing Law
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These presents are governed by, and shall be construed in accordance with, English
law.
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28
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Submission to Jurisdiction
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28.1
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The Issuer irrevocably agrees for the benefit of the Trustee and the Bondholders that
the
courts of England are to have exclusive jurisdiction to settle any dispute which may arise
out of or in connection with this Bond Trust Deed and accordingly submits to the exclusive
jurisdiction of the English courts. The Issuer waives any objection to the courts of England
on the grounds that they are an inconvenient or inappropriate forum. The Trustee and
(subject to the terms contained herein) the Bondholders may take any suit, action or
proceeding arising out of or in connection with these presents (together referred to as
Proceedings
) against the Issuer in any other court of competent jurisdiction and
concurrent Proceedings in any number of jurisdictions.
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28.2
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Invalidity
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If at any time any provision of these presents is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, that shall not affect or
impair:
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(a)
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the legality, validity or enforceability in that jurisdiction of any other
provision of
these presents; or
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(b)
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the legality, validity or enforceability under the law of any other
jurisdiction of that or
any other provision of these presents.
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28.3
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Service of Process
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The Issuer irrevocably appoints Law Debenture Corporate Services Limited at Fifth Floor
100 Wood Street London EC2V 7EX as its authorised agent for service of process in
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England. If for any reason such agent shall cease to be such agent for the service of
process, the Issuer shall forthwith appoint a new agent for service of process in England
and shall immediately notify the Trustee of such appointment. Nothing shall affect the right
to serve process in any other manner permitted by law.
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29
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Counterparts
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This Bond Trust Deed and any trust deed supplemental hereto may be executed and
delivered in any number of counterparts (including by facsimile), all of which, taken
together, shall constitute one and the same deed and any party to this Bond Trust Deed or
any trust deed supplemental hereto may enter into the same by executing and delivering a
counterpart (including by facsimile).
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30
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Contracts (Rights of Third Parties) Act 1999
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A person who is not a party to these presents has no rights under the Contracts
(Rights of Third Parties) Act 1999 to enforce any term of these presents, but this does not
affect any right or remedy of a third party which exists or is available apart from that
Act.
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Schedule 1
Certificate of Compliance
[On the letterhead of NUCLEAR ENERGY HOLDINGS, L.L.C.]
To: The Bank of New York of One Canada Square, London E14 5AL as Trustee of a bond trust deed dated
13 October 2006 (the
Bond Trust Deed)
constituting
JPY50,980,000,000 2.20 per
cent. Fixed Rate Bonds due 2013 and JPY78,000,000,000 Floating Rate Bonds
due 2013
of NUCLEAR ENERGY HOLDINGS,
L.L.C. (the
Issuer)
.
We,
and each being an Officer of the Issuer HEREBY CERTIFY that:
(a)
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as at [
please insert a date not more than seven days prior to delivery of this certificate
]
there did not exist and had not existed since [
] 2006 any Event of Default or any Potential
Event of Default (both as defined in the Bond Trust Deed); and
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(b)
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during the period from and including [
] 2006 to and including [
please insert the date first
mentioned in (a) above
] the Issuer has complied in all material respects with all its
obligations contained in the Bond Trust Deed and Schedules thereto.
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Dated this [
] 2006
- 34 -
Schedule 2
Form of Global Bonds
Part 1A
Form of Temporary Global Bond
NUCLEAR ENERGY HOLDINGS, L.LC. (a company with limited liability organised under the laws
of the State of Delaware, United States of America, whose registered office is c/o Corporation Trust
Center, 1209 Orange Street, Wilmington, Delaware 19801-1120)
TEMPORARY GLOBAL BOND
representing
JPY50,980,000,000 2.20 per cent. Fixed Rate Bonds due 2013
This Bond is a Temporary Global Bond without interest coupons in respect of a duly authorised
issue of JPY50,980,000,000 2.20 per cent. Fixed Rate Bonds due 2013 of NUCLEAR ENERGY HOLDINGS,
L.L.C. (the
Issuer
), designated as specified in
the title hereof (the
Bonds
), limited to the
aggregate principal amount of JPY50,980,000,000 and constituted by a Bond Trust Deed dated 13
October 2006 (the
Bond Trust Deed)
between the Issuer and The Bank of New York as trustee (the
trustee for the time being thereof being herein called the
Trustee
). References herein to the
Conditions (or to any particular numbered Condition) shall be to the Conditions (or that
particular one of them) set out in Schedule 4 to the Bond Trust Deed. The aggregate principal
amount from time to time of this Temporary Global Bond shall be JPY50,980,000,000 or, if less,
that amount as shall be shown by the latest entry duly made in the Schedule hereto.
1
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Promise to pay
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Subject as provided in this Temporary Global Bond the Issuer promises to pay to the
bearer the principal amount of this Temporary Global Bond together with the Call Premium(if
any) as consideration for the advance of the principal and any other provisions from which
the Issuer benefits in respect of the Bonds (other than the use of the principal secured
from time to time) (being at the date hereof JPY50,980,000,000 on the Interest Payment Date
falling on or about 15 March 2013 (or in whole or, where applicable, in part on such earlier
date as the said principal amount or part respectively or Call Premium may become repayable
in accordance with the Conditions or the Bond Trust Deed) and to pay interest as the sole
consideration for the use of the principal secured from time to time semi annually in arrear
on the 15th of each March and September (each an
Interest
Payment Date
) on the principal
amount from time to time of this Temporary Global Bond at rates determined in accordance
with the Conditions together with such other amounts (if any) as may be payable, all subject
to and in accordance with the Conditions and the provisions of the Bond Trust Deed.
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2
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Exchange for Permanent Global Bond and purchases
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This Temporary Global Bond is exchangeable in whole or in part upon the request of
the bearer for a further global Bond in respect of up to JPY50,980,000,000 aggregate
principal amount of the Bonds (the
Permanent Global Bond
) only on and subject to the
terms and conditions set out below.
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On and after 23 November 2006 (the
Exchange
Date
) this Temporary Global Bond may be
exchanged in whole or in part at the specified office of the Principal Paying Agent (or
such other place as the Trustee may agree) for the Permanent Global Bond and the Issuer
shall procure that the Principal Paying Agent shall issue and deliver, in full or partial
exchange for this Temporary Global Bond, the Permanent Global Bond (or, as the case may be,
endorse the Permanent Global Bond) in an aggregate principal amount equal to the principal
amount of this Temporary Global Bond submitted for exchange Provided that if definitive
Bonds (together with the coupons appertaining thereto) have already been issued in exchange
for all the Bonds represented for the time being by the Permanent Global Bond, then this
Temporary Global Bond may thereafter be exchanged only for definitive Bonds (together with
the coupons appertaining thereto) and in such circumstances references herein to the
Permanent Global Bond shall be construed accordingly and provided further that the
Permanent Global Bond shall be issued and delivered (or, as the case may be, endorsed) only
if and to the extent that there shall have been presented to the Issuer a certificate from
Euroclear Bank S.A./N.V.
(Euroclear)
or from Clearstream Banking, société anonyme
(Clearstream, Luxembourg)
substantially in the form of the certificate attached as
Exhibit A.
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Any person who would, but for the provisions of this Temporary Global Bond, the Permanent
Global Bond and the Bond Trust Deed, otherwise be entitled to receive a definitive Bond or
definitive Bonds shall not be entitled to require the exchange of an appropriate part of
this Temporary Global Bond for a like part of the Permanent Global Bond unless and until he
shall have delivered or caused to be delivered to Euroclear or Clearstream, Luxembourg a
certificate substantially in the form of the certificate attached as Exhibit B (copies of
form of certificate will be available at the offices of Euroclear in Brussels and
Clearstream, Luxembourg in Luxembourg and the specified office of each of the Paying
Agents).
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Upon (i) any exchange of a part of this Temporary Global Bond for a like part of the
Permanent Global Bond or (ii) the purchase by or on behalf of the Issuer or any Subsidiary
of the Issuer and cancellation of a part of this Temporary Global Bond in accordance with
the Conditions, the portion of the principal amount hereof so exchanged or so purchased and
cancelled shall be endorsed by or on behalf of the Principal Paying Agent on behalf of the
Issuer on Part II of the Schedule hereto, whereupon the principal amount hereof shall be
reduced for all purposes by the amount so exchanged or so purchased and cancelled and, in
each case, endorsed.
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3
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Payments
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Until the entire principal amount of this Temporary Global Bond has been
extinguished, this Temporary Global Bond shall in all respects be entitled to the same
benefits as the definitive Bonds for the time being represented hereby and shall be
entitled to the benefit of and be bound by the Bond Trust Deed, except that the holder of
this Temporary Global Bond shall not (unless upon due presentation of this Temporary Global
Bond for exchange, issue and delivery (or, as the case may be, endorsement) of the
Permanent Global Bond is improperly withheld or refused and such withholding or refusal is
continuing at the relevant payment date) be entitled (i) to receive any payment of interest
on this Temporary Global Bond except (subject to (ii) below) upon certification as
hereinafter provided or (ii) on and after the Exchange Date, to receive any payment on this
Temporary Global Bond. Upon any payment of principal or interest on this Temporary Global
Bond the amount so paid
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- 36 -
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shall be endorsed by or on behalf of the Principal Paying Agent on behalf of the Issuer on
Part II of the Schedule hereto.
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Payments of interest in respect of Bonds for the time being represented by this Temporary
Global Bond shall be made to the bearer only upon presentation to the Issuer of a
certificate from Euroclear or from Clearstream, Luxembourg substantially in the form of the
certificate attached as Exhibit A. Any person who would, but for the provisions of this
Temporary Global Bond and of the Bond Trust Deed, otherwise be beneficially entitled to a
payment of interest on this Temporary Global Bond shall not be entitled to require such
payment unless and until he shall have delivered or caused to be delivered to Euroclear or
Clearstream, Luxembourg a certificate substantially in the form of the certificate attached
as Exhibit B (copies of form of certificate will be available at the offices of Euroclear in
Brussels and Clearstream, Luxembourg in Luxembourg and the specified office of each of the
Paying Agents).
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Upon any payment of principal and endorsement of such payment on Part II of the Schedule
hereto, the principal amount of this Temporary Global Bond shall be reduced for all
purposes by the principal amount so paid and endorsed.
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All payments of any amounts payable and paid to the bearer of this Temporary Global Bond
shall be valid and, to the extent of the sums so paid, effectual to satisfy and discharge
the liability for the moneys payable hereon, on the Permanent Global Bond and on the
relevant definitive Bonds.
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4
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Accountholders
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For so long as all of the Bonds are represented by a Global Bond and such Global
Bond(s) are held on behalf of Euroclear and/or Clearstream, Luxembourg, each person who is
for the time being shown in the records of Euroclear or Clearstream, Luxembourg as the
holder of a particular principal amount of such Bonds (each an Accountholder) (in which
regard any certificate or other document issued by Euroclear or Clearstream, Luxembourg as
to the principal amount of such Bonds standing to the account of any person shall, in the
absence of manifest error, be conclusive and binding for all purposes) shall be treated as
the holder of such principal amount of such Bonds for all purposes (including for the
purposes of any quorum requirements of, or the right to demand a poll at, meetings of the
Bondholders) other than with respect to the payment of principal and interest on such
Bonds, the right to which shall be vested, as against the Issuer and the Trustee, solely in
the bearer of the relevant Global Bond in accordance with and subject to its terms and the
terms of the Bond Trust Deed. Each Accountholder must look solely to Euroclear or
Clearstream, Luxembourg, as the case may be, for its share of each payment made to the
bearer of the relevant Global Bond.
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5
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Notices
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For so long as all of the Bonds are represented by one or both of the Permanent
Global Bond and this Temporary Global Bond and such Global Bond(s) are held on behalf of
Euroclear and/or Clearstream, Luxembourg, notices to Bondholders may be given by delivery
of the relevant notice to Euroclear and/or Clearstream, Luxembourg (as the case may be) for
communication to the relative Accountholders rather than by publication as required by
Condition 15. Any such notice shall be deemed to have been given to the Bondholders on the
second day after the day on which such notice is delivered to Euroclear and/or Clearstream,
Luxembourg (as the case may be) as aforesaid.
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- 37 -
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Whilst any Bonds held by a Bondholder are represented by a Global Bond, notices to be given
by such Bondholder may be given by such Bondholder to the Principal Paying Agent through
Euroclear and/or Clearstream, Luxembourg, as the case may be, in such a manner as the
Principal Paying Agent and Euroclear and/or Clearstream, Luxembourg, as the case may be, may
approve for this purpose.
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6
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Prescription
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Claims against the Issuer in respect of principal and interest on the Bonds
represented by the Permanent Global Bond or this Temporary Global Bond will be prescribed
after ten years (in the case of principal) and five years (in the case of interest) from the
Relevant Date (as defined in Condition 10).
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7
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Meetings
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The holder of a Temporary Global Bond will be treated as being one person for the
purposes of any quorum requirements of, or the right to demand a poll at, a meeting of
Bondholders and, at any such meeting, as having one vote in respect of each JPY 10,000,000
in principal amount of Bonds.
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8
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Euroclear and Clearstream, Luxembourg
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References herein to Euroclear and/or Clearstream, Luxembourg shall be deemed to
include references to any other clearing system approved by the Trustee.
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9
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Authentication
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This Temporary Global Bond shall not be or become valid or obligatory for any
purpose unless and until authenticated by or on behalf of the Principal Paying Agent.
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10
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Governing law
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This Temporary Global Bond is governed by, and shall be construed in accordance
with, the laws of England and Wales and the Issuer has in the Bond Trust Deed submitted to
the jurisdiction of the courts of England for all purposes in connection with this
Temporary Global Bond.
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11
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Contracts (Rights of Third Parties) Act 1999
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No rights are conferred on any person under the Contracts (Rights of Third Parties)
Act 1999 to enforce any term of this Temporary Global Bond, but this does not affect any
right or remedy of any person which exists or is available apart from that Act.
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- 38 -
In witness
whereof the Issuer has caused this Temporary Global Bond to be signed manually or in
facsimile by a person duly authorised on its behalf.
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NUCLEAR ENERGY HOLDINGS, L.L.C.
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By:
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Officer
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By:
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Officer
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Issued in London on 13 October 2006.
Certificate of authentication
This Temporary Global Bond is duly authenticated without recourse, warranty or liability.
Duly
authorised for and on behalf of
THE BANK OF NEW YORK
as Principal Paying Agent
- 39 -
The Schedule
Part I
Payments of Principal and Interest
The following payments on this Temporary Global Bond have been made:
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Remaining
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principal amount
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of this Temporary
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Notation
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Global Bond
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made on
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following such
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behalf of
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Date made
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Interest paid
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Principal paid
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payment
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the Issuer
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- 40 -
Part II
Exchanges for Permanent Global Bond, Definitive Bonds and Purchases
and Cancellations
The following exchanges of a part of this Temporary Global Bond for [a like part of
the Permanent Global Bond] [definitive Bonds] and/or purchases and cancellations of a part
of this Temporary Global Bond have been made:
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Part of
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principal
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amount of
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Part of
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Part of
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Aggregate
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this
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principal
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principal
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principal
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Temporary
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amount of
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amount of
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amount of this
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Global Bond
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this
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this
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Temporary
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Notation
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exchanged
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Temporary
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Temporary
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Global Bond
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made
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for a like
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Global Bond
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Global Bond
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following such
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on
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part of the
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exchanged
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purchased
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exchange or
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behalf
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Permanent
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for definitive
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and
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purchase and
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of the
|
Date made
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Global Bond
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Bonds
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cancelled
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cancellation
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Issuer
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- 41 -
Exhibit A
NUCLEAR ENERGY HOLDINGS, L.L.C.
JPY50,980,000,000 2.20 PER CENT. FIXED RATE BONDS DUE 2013
(the
Bonds
)
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from
member organisations appearing in our records as persons being entitled to a
portion of the principal amount set forth below (our
Member
Organisations
)
substantially to the effect set forth in the Bond Trust Deed, as of the date
hereof [
] principal amount of the above-captioned Bonds (i) is owned by
persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of
which is subject to United States Federal income taxation regardless of its
source
(United States persons),
(ii) is owned by United States persons that
(a) are foreign branches of United States financial institutions (as defined
in U.S. Treasury Regulations Section 1.165-12(c)(1)(iv))
(financial
institutions)
purchasing for their own account or for resale, or (b)
acquired the Bonds through foreign branches of United States financial
institutions and who hold the Bonds through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
United States financial institution has agreed, on its own behalf or through
its agent, that we may advise the Issuer or the Issuers agent that it will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder),
or (iii) is owned by United States or foreign financial institutions for
purposes of resale during the restricted period (as defined in U.S. Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that
United States or foreign financial institutions described in Clause (iii)
above (whether or not also described in Clause (i) or (ii)) have certified
that they have not acquired the Bonds for purposes of resale directly or
indirectly to a United States person or to a person within the United States
or its possessions.
If the Bonds are of the category contemplated in Section 230.903(c)(3) of
Regulation S under the Securities Act of 1933, as amended, then this is also
to certify with respect to such principal amount of Bonds set forth above
that, except as set forth below, we have received in writing, by tested telex
or by electronic transmission, from our Member Organisations entitled to a
portion of such principal amount, certifications with respect to such
portion, substantially to the effect set forth in the Bond Trust Deed.
We further certify (i) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the Temporary Global Bond excepted in such certifications and (ii)
that as of the date hereof we have not received any notification from any of
our Member Organisations to the effect that the statements made by such
Member Organisations with respect to any portion of the part submitted
herewith for exchange (or, if relevant, exercise of any rights or collection
of any interest) are no longer true and cannot be relied upon as of the date
hereof.
- 42 -
We understand that this certification is required in connection with certain tax laws and,
if applicable, certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorise you to produce this certification
to any interested party in such proceedings.
*Dated
[Euroclear Bank S.A./N.V.][Clearstream Banking,
société anonyme]
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*
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To be dated no earlier than the date to which this certification relates, namely (a) the
payment date or (b) the date set for the exchange of the temporary Global Bond for [the Permanent
Global Bond] [definitive Bonds].
|
- 43 -
Exhibit B
NUCLEAR ENERGY HOLDINGS, L.L.C.
JPY50,980,000,000 2.20 PER CENT. FIXED RATE BONDS DUE 2013
(the
Bonds
)
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Bonds held by you for our account (i) are owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of
which is subject to United States Federal income taxation regardless of its
source
(United States person(s)),
(ii) are owned by United States person(s)
that (a) are foreign branches of United States financial institutions (as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(iv))
(financial
institutions)
purchasing for their own account or for resale, or (b)
acquired the Bonds through foreign branches of United States financial
institutions and who hold the Bonds through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
United States financial institution hereby agrees, on its own behalf or
through its agent, that you may advise the Issuer or the Issuers agent that
it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as
defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in
addition if the owner of the Bonds is a United States or foreign financial
institution described in Clause (iii) above (whether or not also described in
Clause (i) or (ii)) this is further to certify that such financial
institution has not acquired the Bonds for the purposes of resale directly or
indirectly to a United States person or to a person within the United States
or its possessions.
If the Bonds are of the category contemplated in Section 230.903(c)(3) of
Regulation S under the Securities Act of 1933, as amended, (the
Act
), then
this is also to certify that, except as set forth below (i) in the case of
debt securities, the Bonds are beneficially owned by (a) non-U.S. person(s)
or (b) U.S. person(s) who purchased the Bonds in Transactions which did not
require registration under the Act; or (ii) in the case of equity securities,
the Bonds are owned by (x) non-U.S. person(s) (and such person(s) are not
acquiring the Bonds for the account or benefit of U.S. person(s)) or (y) U.S.
person(s) who purchased the Bonds in a transaction which did not require
registration under the Act. If this certification is being delivered in
connection with the exercise of warrants pursuant to Section 230.902(m) of
Regulation S under the Act, then this is further to certify that, except as
set forth below, the Bonds are being exercised by and on behalf of non-U.S.
person(s). As used in this paragraph the term U.S. person has the meaning
given to it by Regulation S under the Act.
As used herein, United States means the United States of America (including
the States and the District of Columbia); and its possessions include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and
the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the Bonds held
by you for our account in accordance with your operating procedures if any
applicable statement herein is not correct on such date, and in the absence
of any such notification it may be assumed that this certification applies as
Of such date.
This certification excepts and does not relate to JPY[
] of such
interest in the above Bonds in respect of which we are not able to certify
and as to which we understand exchange and delivery
- 44 -
of definitive Bonds (or, if relevant, exercise of any rights or collection of any interest)
cannot be made until we do so certify.
We understand that this certification is required in connection with certain tax laws and, if
applicable, certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorise you to produce this certification
to any interested party in such proceedings.
*Dated
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By:
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[Name of person giving certification]
|
(As, or as agent for, the beneficial
|
owner(s) of the Bonds
|
to which this certification relates)
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|
*
|
|
To be dated no earlier than the fifteenth day before the date to which this certification
relates, namely (a) the payment date or (b) the date set for the exchange of the temporary
Global Bond for [the Permanent Global Bond] [definitive Bonds].
|
- 45 -
Schedule 2
Form of Global Bonds
Part 1B
Form of Temporary Global Bond
NUCLEAR
ENERGY HOLDINGS, L.LC. (a company with limited liability organised under the laws of the State of Delaware, United States of America, whose registered office is c/o Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801-1120)
TEMPORARY GLOBAL BOND
representing
JPY78,000,000,000 FLOATING RATE BONDS DUE 2013
This Bond is a Temporary Global Bond without interest coupons in respect of
a duly authorised issue of JPY78,000,000,000 Floating Rate Bonds due 2013 of
NUCLEAR ENERGY HOLDINGS, L.L.C. (the
Issuer
), designated as specified in
the title hereof (the
Bonds
), limited to the aggregate principal amount of
JPY78,000,000,000 and constituted by a Bond Trust Deed dated 13 October 2006
(the
Bond Trust Deed
) between the Issuer and The Bank of New York as
trustee (the trustee for the time being thereof being herein called the
Trustee
). References herein to the Conditions (or to any particular
numbered Condition) shall be to the Conditions (or that particular one of
them) set out in Schedule 4 to the Bond Trust Deed. The aggregate principal
amount from time to time of this Temporary Global Bond shall be
JPY78,000,000,000 or, if less, that amount as shall be shown by the latest
entry duly made in the Schedule hereto.
1
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Promise to pay
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Subject as provided in this Temporary Global Bond the Issuer
promises to pay to the bearer the principal amount of this Temporary
Global Bond together with the Call Premium (if any) as consideration
for the advance of the principal and any other provisions from which
the Issuer benefits in respect of the Bonds (other than the use of the
principal secured from time to time) (being at the date hereof
JPY78,000,000,000 on the Interest Payment Date on or about 15 March
2013 (or in whole or, where applicable, in part on such earlier date
as the said principal amount or part respectively or Call Premium may
become repayable in accordance with the Conditions or the Bond Trust
Deed) and to pay interest as the sole consideration for the use of the
principal secured from time to time semi annually in arrear on the
15th of each March and September (each an
Interest Payment
Date
) on
the principal amount from time to time of this Temporary Global Bond
at rates determined in accordance with the Conditions together with
such other amounts (if any) as may be payable, all subject to and in
accordance with the Conditions and the provisions of the Bond Trust
Deed.
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2
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Exchange for Permanent Global Bond and purchases
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This Temporary Global Bond is exchangeable in whole or in part
upon the request of the bearer for a further global Bond in respect of
up to JPY78,000,000,000 aggregate principal amount of the Bonds (the
Permanent Global Bond
) only on and subject to the terms and
conditions set out below.
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- 46 -
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On and after 23 November 2006 (the
Exchange
Date
) this
Temporary Global Bond may be exchanged in whole or in part at the
specified office of the Principal Paying Agent (or such other place as
the Trustee may agree) for the Permanent Global Bond and the Issuer
shall procure that the Principal Paying Agent shall issue and deliver,
in full or partial exchange for this Temporary Global Bond, the
Permanent Global Bond (or, as the case may be, endorse the Permanent
Global Bond) in an aggregate principal amount equal to the principal
amount of this Temporary Global Bond submitted for exchange Provided
that if definitive Bonds (together with the coupons appertaining
thereto) have already been issued in exchange for all the Bonds
represented for the time being by the Permanent Global Bond, then this
Temporary Global Bond may thereafter be exchanged only for definitive
Bonds (together with the coupons appertaining thereto) and in such
circumstances references herein to the Permanent Global Bond shall be
construed accordingly and provided further that the Permanent Global
Bond shall be issued and delivered (or, as the case may be, endorsed)
only if and to the extent that there shall have been presented to the
Issuer a certificate from Euroclear Bank S.A./N.V.
(
Euroclear
) or
from Clearstream Banking, société anonyme (
Clearstream,
Luxembourg
)
substantially in the form of the certificate attached as Exhibit A.
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Any person who would, but for the provisions of this Temporary Global
Bond, the Permanent Global Bond and the Bond Trust Deed, otherwise be
entitled to receive a definitive Bond or definitive Bonds shall not be
entitled to require the exchange of an appropriate part of this
Temporary Global Bond for a like part of the Permanent Global Bond
unless and until he shall have delivered or caused to be delivered to
Euroclear or Clearstream, Luxembourg a certificate substantially in the
form of the certificate attached as Exhibit B (copies of form of
certificate will be available at the offices of Euroclear in Brussels
and Clearstream, Luxembourg in Luxembourg and the specified office of
each of the Paying Agents).
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Upon (i) any exchange of a part of this Temporary Global Bond for a
like part of the Permanent Global Bond or (ii) the purchase by or on
behalf of the Issuer or any Subsidiary of the Issuer and cancellation
of a part of this Temporary Global Bond in accordance with the
Conditions, the portion of the principal amount hereof so exchanged or
so purchased and cancelled shall be endorsed by or on behalf of the
Principal Paying Agent on behalf of the Issuer on Part II of the
Schedule hereto, whereupon the principal amount hereof shall be reduced
for all purposes by the amount so exchanged or so purchased and
cancelled and, in each case, endorsed.
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3
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Payments
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Until the entire principal amount of this Temporary Global Bond
has been extinguished, this Temporary Global Bond shall in all respects
be entitled to the same benefits as the definitive Bonds for the time
being represented hereby and shall be entitled to the benefit of and be
bound by the Bond Trust Deed, except that the holder of this Temporary
Global Bond shall not (unless upon due presentation of this Temporary
Global Bond for exchange, issue and delivery (or, as the case may be,
endorsement) of the Permanent Global Bond is improperly withheld or
refused and such withholding or refusal is continuing at the relevant
payment date) be entitled (i) to receive any payment of interest on
this Temporary Global Bond except (subject to (ii) below) upon
certification as hereinafter provided or (ii) on and after the Exchange
Date, to receive any payment on this Temporary Global Bond. Upon any
payment of principal or interest on this Temporary Global Bond the
amount so paid
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- 47 -
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shall be endorsed by or on behalf of the Principal Paying Agent on behalf of the
Issuer on Part II of the Schedule hereto.
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Payments of interest in respect of Bonds for the time being represented by this Temporary
Global Bond shall be made to the bearer only upon presentation to the Issuer of a
certificate from Euroclear or from Clearstream, Luxembourg substantially in the form of the
certificate attached as Exhibit A. Any person who would, but for the provisions of this
Temporary Global Bond and of the Bond Trust Deed, otherwise be beneficially entitled to a
payment of interest on this Temporary Global Bond shall not be entitled to require such
payment unless and until he shall have delivered or caused to be delivered to Euroclear or
Clearstream, Luxembourg a certificate substantially in the form of the certificate attached
as Exhibit B (copies of form of certificate will be available at the offices of Euroclear in
Brussels and Clearstream, Luxembourg in Luxembourg and the specified office of each of the
Paying Agents).
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Upon any payment of principal and endorsement of such payment on Part II of the Schedule
hereto, the principal amount of this Temporary Global Bond shall be reduced for all
purposes by the principal amount so paid and endorsed.
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All payments of any amounts payable and paid to the bearer of this Temporary Global Bond
shall be valid and, to the extent of the sums so paid, effectual to satisfy and discharge
the liability for the moneys payable hereon, on the Permanent Global Bond and on the
relevant definitive Bonds.
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4
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Accountholders
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For so long as all of the Bonds are represented by a Global Bond and such Global
Bond(s) are held on behalf of Euroclear and/or Clearstream, Luxembourg, each person who is
for the time being shown in the records of Euroclear or Clearstream, Luxembourg as the
holder of a particular principal amount of such Bonds (each an Accountholder) (in which
regard any certificate or other document issued by Euroclear or Clearstream, Luxembourg as
to the principal amount of such Bonds standing to the account of any person shall, in the
absence of manifest error, be conclusive and binding for all purposes) shall be treated as
the holder of such principal amount of such Bonds for all purposes (including for the
purposes of any quorum requirements of, or the right to demand a poll at, meetings of the
Bondholders) other than with respect to the payment of principal and interest on such Bonds,
the right to which shall be vested, as against the Issuer and the Trustee, solely in the
bearer of the relevant Global Bond in accordance with and subject to its terms and the terms
of the Bond Trust Deed. Each Accountholder must look solely to Euroclear or Clearstream,
Luxembourg, as the case may be, for its share of each payment made to the bearer of the
relevant Global Bond.
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5
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Notices
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For so long as all of the Bonds are represented by one or both of the Permanent
Global Bond and this Temporary Global Bond and such Global Bond(s) are held on behalf of
Euroclear and/or Clearstream, Luxembourg, notices to Bondholders may be given by delivery of
the relevant notice to Euroclear and/or Clearstream, Luxembourg (as the case may be) for
communication to the relative Accountholders rather than by publication as required by
Condition 15. Any such notice shall be deemed to have been given to the Bondholders on the
second day after the day on which such notice is delivered to Euroclear and/or Clearstream,
Luxembourg (as the case may be) as aforesaid.
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- 48 -
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Whilst any Bonds held by a Bondholder are represented by a
Global Bond, notices to be given by such Bondholder may be given by
such Bondholder to the Principal Paying Agent through Euroclear and/or
Clearstream, Luxembourg, as the case may be, in such a manner as the
Principal Paying Agent and Euroclear and/or Clearstream, Luxembourg, as
the case may be, may approve for this purpose.
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6
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Prescription
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Claims against the Issuer in respect of principal and interest
on the Bonds represented by the Permanent Global Bond or this Temporary
Global Bond will be prescribed after ten years (in the case of
principal) and five years (in the case of interest) from the Relevant
Date (as defined in Condition 10).
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7
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Meetings
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The holder of a Temporary Global Bond will be treated as being
one person for the purposes of any quorum requirements of, or the right
to demand a poll at, a meeting of Bondholders and, at any such meeting,
as having one vote in respect of each JPY 10,000,000 in principal
amount of Bonds.
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8
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Euroclear and Clearstream, Luxembourg
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References herein to Euroclear and/or Clearstream, Luxembourg
shall be deemed to include references to any other clearing system
approved by the Trustee.
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9
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Authentication
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This Temporary Global Bond shall not be or become valid or
obligatory for any purpose unless and until authenticated by or on
behalf of the Principal Paying Agent.
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10
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Governing law
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This Temporary Global Bond is governed by, and shall be
construed in accordance with, the laws of England and Wales and the
Issuer has in the Bond Trust Deed submitted to the jurisdiction of the
courts of England for all purposes in connection with this Temporary
Global Bond.
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11
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Contracts (Rights of Third Parties) Act 1999
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No rights are conferred on any person under the Contracts
(Rights of Third Parties) Act 1999 to enforce any term of this
Temporary Global Bond, but this does not affect any right or remedy of
any person which exists or is available apart from that Act.
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- 49 -
In witness
whereof the Issuer has caused this Temporary Global Bond to
be signed manually or in facsimile by a person duly authorised on its behalf.
NUCLEAR ENERGY HOLDINGS, L.L.C.
Issued in London on 13 October 2006.
Certificate of authentication
This Temporary Global Bond is duly authenticated without recourse, warranty or
liability.
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Duly authorised
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for and on behalf of
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THE BANK OF NEW YORK
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as Principal Paying Agent
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- 50 -
The Schedule
Part I
Payments of Principal and Interest
The following payments on this Temporary Global Bond have been made:
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Remaining
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principal amount
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of this Temporary
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Notation
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Global Bond
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made on
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following such
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behalf of
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Date made
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Interest paid
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Principal paid
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payment
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the Issuer
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- 51 -
Part II
Exchanges
for Permanent Global Bond, Definitive Bonds and Purchases and Cancellations
The following exchanges of a part of this Temporary Global Bond for [a like part of the
Permanent
Global Bond] [definitive Bonds] and/or purchases and cancellations of a part of this Temporary
Global Bond have been made:
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Part of
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principal
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amount of
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Part of
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Part of
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Aggregate
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this
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principal
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principal
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principal
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Temporary
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amount of
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amount of
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amount of this
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Global Bond
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this
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this
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Temporary
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Notation
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exchanged
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Temporary
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Temporary
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Global Bond
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made
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for a like
|
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Global Bond
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Global Bond
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following such
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on
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part of the
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exchanged
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purchased
|
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exchange or
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behalf
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|
Permanent Global
|
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for definitive
|
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and
|
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purchase and
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of the
|
Date made
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Bond
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Bonds
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cancelled
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cancellation
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Issuer
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- 52 -
Exhibit A
NUCLEAR ENERGY HOLDINGS, L.L.C.
JPY78,000,000,000 FLOATING RATE BONDS DUE 2013
(the
Bonds
)
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member
organisations appearing in our records as persons being entitled to a portion
of the principal amount set forth below (our
Member Organisations)
substantially to the effect set forth in the Bond Trust Deed, as of the date
hereof [
] principal amount of the above-captioned Bonds (i) is owned by
persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of
which is subject to United States Federal income taxation regardless of its
source
(United States persons),
(ii) is owned by United States persons that
(a) are foreign branches of United States financial institutions (as defined
in U.S. Treasury Regulations Section 1.165-12(c)(1)(iv))
(financial
institutions)
purchasing for their own account or for resale, or (b)
acquired the Bonds through foreign branches of United States financial
institutions and who hold the Bonds through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
United States financial institution has agreed, on its own behalf or through
its agent, that we may advise the Issuer or the Issuers agent that it will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder),
or (iii) is owned by United States or foreign financial institutions for
purposes of resale during the restricted period (as defined in U.S. Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that
United States or foreign financial institutions described in Clause (iii)
above (whether or not also described in Clause (i) or (ii)) have certified
that they have not acquired the Bonds for purposes of resale directly or
indirectly to a United States person or to a person within the United States
or its possessions.
If the Bonds are of the category contemplated in Section 230.903(c)(3) of
Regulation S under the Securities Act of 1933, as amended, then this is also
to certify with respect to such principal amount of Bonds set forth above
that, except as set forth below, we have received in writing, by tested telex
or by electronic transmission, from our Member Organisations entitled to a
portion of such principal amount, certifications with respect to such
portion, substantially to the effect set forth in the Bond Trust Deed.
We further certify (i) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the Temporary Global Bond excepted in such certifications and (ii)
that as of the date hereof we have not received any notification from any of
our Member Organisations to the effect that the statements made by such
Member Organisations with respect to any portion of the part submitted
herewith for exchange (or, if relevant, exercise of any rights or collection
of any interest) are no longer true and cannot be relied upon as of the date
hereof.
- 53 -
We understand that this certification is required in connection with certain tax laws
and, if applicable, certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorise you to produce this certification
to any interested party in such proceedings.
*Dated
[Euroclear
Bank S.A./N.V.][Clearstream Banking, société anonyme]
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*
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To be dated no earlier than the date to which this certification relates, namely (a) the
payment date or (b) the date set for the exchange of the temporary Global Bond for [the Permanent
Global Bond] [definitive Bonds].
|
- 54 -
Exhibit B
NUCLEAR ENERGY HOLDINGS, L.L.C.
JPY78,000,000,000 FLOATING RATE BONDS DUE 2013
(the
Bonds
)
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Bonds held by you for our account (i) are owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of
which is subject to United States Federal income taxation regardless of its
source
(United States person(s)),
(ii) are owned by United States person(s)
that (a) are foreign branches of United States financial institutions (as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(iv))
(financial
institutions)
purchasing for their own account or for resale, or (b)
acquired the Bonds through foreign branches of United States financial
institutions and who hold the Bonds through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
United States financial institution hereby agrees, on its own behalf or
through its agent, that you may advise the Issuer or the Issuers agent that
it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as
defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in
addition if the owner of the Bonds is a United States or foreign financial
institution described in Clause (iii) above (whether or not also described in
Clause (i) or (ii)) this is further to certify that such financial
institution has not acquired the Bonds for the purposes of resale directly or
indirectly to a United States person or to a person within the United States
or its possessions.
If the Bonds are of the category contemplated in Section 230.903(c)(3) of
Regulation S under the Securities Act of 1933, as amended, (the
Act
), then
this is also to certify that, except as set forth below (i) in the case of
debt securities, the Bonds are beneficially owned by (a) non-U.S. person(s)
or (b) U.S. person(s) who purchased the Bonds in transactions which did not
require registration under the Act; or (ii) in the case of equity securities,
the Bonds are owned by (x) non-U.S. person(s) (and such person(s) are not
acquiring the Bonds for the account or benefit of U.S. person(s)) or (y) U.S.
person(s) who purchased the Bonds in a transaction which did not require
registration under the Act. If this certification is being delivered in
connection with the exercise of warrants pursuant to Section 230.902(m) of
Regulation S under the Act, then this is further to certify that, except as
set forth below, the Bonds are being exercised by and on behalf of non-U.S.
person(s). As used in this paragraph the term U.S. person has the meaning
given to it by Regulation S under the Act.
As used herein, United States means the United States of America (including
the States and the District of Columbia); and its possessions include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and
the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the Bonds held
by you for our account in accordance with your operating procedures if any
applicable statement herein is not correct on such date, and in the absence
of any such notification it may be assumed that this certification applies as
of such date.
This
certification excepts and does not relate to JPY[] of such
interest in the above Bonds in respect of which we are not able to certify
and as to which we understand exchange and delivery
- 55 -
of
definitive Bonds (or, if relevant, exercise of any rights or collection of any interest)
cannot be made until we do so certify.
We understand that this certification is required in connection with certain tax laws and, if
applicable, certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorise you to produce this certification
to any interested party in such proceedings.
*Dated
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By:
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[Name of person giving certification]
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(As, or as agent for, the beneficial
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owner(s) of the Bonds
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to which this certification relates)
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*
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To be dated no earlier than the fifteenth day before the date to which this certification
relates, namely (a) the payment date or (b) the date set for the exchange of the temporary Global
Bond for [the Permanent Global Bond] [definitive Bonds].
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- 56 -
Part 2A
Form of Permanent Global Bond
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE
UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF
THE INTERNAL REVENUE CODE.
NUCLEAR ENERGY HOLDINGS, L.L.C. (a company with limited liability organised under the laws of the State of Delaware, United States of America, whose registered office is c/o Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801-1120)
PERMANENT GLOBAL BOND
representing up to
JPY50,980,000,000 2.20 PER CENT. FIXED RATE BONDS DUE 2013
This Bond is a Permanent Global Bond without interest coupons in respect of a duly authorised
issue of JPY50,980,000,000 2.20 PER CENT. FIXED RATE BONDS DUE 2013 of NUCLEAR ENERGY HOLDINGS,
L.L.C. (the
Issuer
), designated as specified in the title hereof (the
Bonds
), limited to the
aggregate principal amount of JPY50,980,000,000 and constituted by a Bond Trust Deed dated 13
October 2006 (the
Bond Trust Deed)
between the Issuer and The Bank Of New York as trustee (the
trustee for the time being thereof being herein called the
Trustee).
References herein to the
Conditions (or to any particular numbered Condition) shall be to the Conditions (or that
particular one of them) set out in the Schedule 4 to the Bond Trust Deed. The aggregate principal
amount from time to time of this Permanent Global Bond shall be JPY50,980,000,000 or, if less,
that amount as shall be shown by the latest entry duly made in the Schedule hereto.
1
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Promise to pay
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Subject as provided in this Permanent Global Bond the Issuer promises to pay to the
bearer the principal amount of this Permanent Global Bond together with the Call Premium(if
any) as consideration for the advance of the principal and any other provisions from which
the Issuer benefits in respect of the Bonds (other than the use of the principal secured
from time to time) on the Interest Payment Date falling on or about 15 March 2013 (or in
whole or, where applicable, in part on such earlier date as the said principal amount or
part respectively or Call Premium may become repayable in accordance with the Conditions or
the Bond Trust Deed) and to pay interest as the sole consideration for the use of the
principal secured from time to time semi annually in arrear on the 15
th
of each
March and September of each year on the principal amount from time to time of this
Permanent Global Bond at rates determined in accordance with the Conditions together with
such other amounts (if any) as may be payable, all subject to and in accordance with the
Conditions and the provisions of the Bond Trust Deed.
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2
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Exchange for definitive Bonds and purchases
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This Permanent Global Bond will be exchangeable in whole but not in part free of
charge to the holder) for definitive Bonds upon (i) not less than 60 days written notice
from Euroclear Bank S.A./N.V.
(Euroclear)
and/or
Clearstream Banking, société anonyme
(Clearstream, Luxembourg)
(acting on the instructions of any holder of an interest in
such Permanent Global Bond) to the Principal Paying Agent; (ii) upon the happening of any
of the events defined in the Bond Trust Deed as Events of Default, (iii) if either
Euroclear or
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- 57 -
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Clearstream, Luxembourg is closed for business for a continuous
period of 14 days (other than by reason of holiday, statutory or
otherwise) or announces an intention permanently to cease business or
does in fact do so and no alternative clearing system satisfactory to
the Trustee is available, or (iv) if the Issuer would suffer a
disadvantage as a result of a change in laws or regulations (taxation
or otherwise) or as a result of a change in the practice of Euroclear
and/or Clearstream, Luxembourg which would not be suffered were the
Bonds in definitive form and a certificate to such effect signed by two
Officers of the Issuer is given to the Trustee. Thereupon (in the case
of (i) to (iii) above) the holder of this Permanent Global Bond may
give notice to the Issuer, and (in the case of (iv) above) the Issuer
may give notice to the Trustee and the Bondholders, of its intention to
exchange this Permanent Global Bond for definitive Bonds on or after
the Exchange Date (as defined below).
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On or after the Exchange Date the holder of this Permanent Global Bond
may or, in the case of (iii) above, shall surrender this Permanent
Global Bond to or to the order of the Principal Paying Agent. In
exchange for this Permanent Global Bond the Issuer will deliver, or
procure the delivery of, definitive Bonds in bearer form, serially
numbered, in the denominations of JPY 10,000,000 each with interest
coupons and one talon (
Coupons
) attached on issue in respect of
interest which has not already been paid on this Permanent Global Bond
in the denomination of JPY10,000,000 each (in exchange for the whole of
this Permanent Global Bond).
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Exchange Date
means a day specified in the notice requiring exchange
falling not less than 60 days after that on which such notice is given
and on which banks are open for business in the city in which the
specified office of the Principal Paying Agent is located and (except
in the case of (ii) above) in the city in which the relevant clearing
system is
located.
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Upon (i) any exchange of a part of the Temporary Global Bond for a part
of this Permanent Global Bond or (ii) the purchase by or on behalf of
the Issuer or any Subsidiary of the Issuer and cancellation of a part
of this Permanent Global Bond in accordance with the Conditions, the
portion of the principal amount hereof so exchanged shall be endorsed
by or on behalf of the Principal Paying Agent on behalf of the Issuer
on Part II of the Schedule hereto, whereupon the principal amount
hereof shall be increased or, as the case may be, reduced for all
purposes by the amount so exchanged and endorsed. Upon the exchange of
the whole of this Permanent Global Bond for definitive Bonds this
Permanent Global Bond shall be surrendered to or to the order of the
Principal Paying Agent and cancelled and, if the holder of this
Permanent Global Bond requests, returned to it together with any
relevant definitive Bonds.
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3
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Payments
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Until the entire principal amount of this Permanent Global Bond
has been extinguished, this Permanent Global Bond shall (subject as
hereinafter and in the Bond Trust Deed provided) in all respects be
entitled to the same benefits as the definitive Bonds and shall be
entitled to the benefit of and be bound by the Bond Trust Deed.
Payments of principal and interest in respect of Bonds represented by
this Permanent Global Bond will be made against presentation for
endorsement and, if no further payment falls to be made in respect of
the Bonds, surrender of this Permanent Global Bond to the order of the
Principal Paying Agent as shall have been notified to the Bondholders
for such purposes. Upon any payment of principal or interest on this
Permanent Global Bond the amount so paid shall
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- 58 -
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be endorsed by or on behalf of the Principal Paying Agent on behalf of the Issuer on
Part I of the Schedule hereto.
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Upon any payment of principal and endorsement of such payment on Part I of the Schedule
hereto, the principal amount of this Permanent Global Bond shall be reduced for all
purposes by the principal amount so paid and endorsed.
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All payments of any amounts payable and paid to the bearer of this Permanent Global Bond
shall be valid and, to the extent of the sums so paid, effectual to satisfy and discharge
the liability for the moneys payable hereon and on the relevant definitive Bonds and
Coupons.
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4
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Accountholders
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For so long as all of the Bonds are represented by one or both of the Temporary
Global Bond and this Permanent Global Bond and such Global Bond(s) are held on behalf of
Euroclear and/or Clearstream, Luxembourg, each person who is for the time being shown in the
records of Euroclear or Clearstream, Luxembourg as the holder of a particular principal
amount of such Bonds (each an
Accountholder
) (in which regard any certificate or other
document issued by Euroclear or Clearstream, Luxembourg as to the principal amount of such
Bonds standing to the account of any person shall, in the absence of manifest error, be
conclusive and binding for all purposes) shall be treated as the holder of such principal
amount of such Bonds for all purposes (including for the purposes of any quorum requirements
of, or the right to demand a poll at, meetings of the Bondholders) other than with respect
to the payment of principal and interest on such Bonds, the right to which shall be vested,
as against the Issuer and the Trustee, solely in the bearer of the relevant Global Bond in
accordance with and subject to its terms and the terms of the Bond Trust Deed. Each
Accountholder must look solely to Euroclear or Clearstream, Luxembourg, as the case may be,
for its share of each payment made to the bearer of the relevant Global Bond.
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5
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Notices
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For so long as all of the Bonds are represented by one or both of the Temporary
Global Bond and this Permanent Global Bond and such Global Bond(s) are held on behalf of
Euroclear and/or Clearstream, Luxembourg, notices to Bondholders may be given by delivery
of the relevant notice to Euroclear and/or Clearstream, Luxembourg (as the case may be) for
communication to the relative Accountholders rather than by publication as required by
Condition 15. Any such notice shall be deemed to have been given to the Bondholders on the
second day after the day on which such notice is delivered to Euroclear and/or Clearstream,
Luxembourg (as the case may be) as aforesaid.
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Whilst any Bonds held by a Bondholder are represented by a Global Bond, notices to be given
by such Bondholder may be given by such Bondholder to the Principal Paying Agent through
Euroclear and/or Clearstream, Luxembourg, as the case may be, in such a manner as the
Principal Paying Agent and Euroclear and/or Clearstream, Luxembourg, as the case may be,
may approve for this purpose.
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6
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Prescription
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Claims against the Issuer in respect of principal and interest on the Bonds
represented by the Temporary Global Bond or this Permanent Global Bond will be prescribed
after ten
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- 59 -
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years (in the case of principal and five years (in the case of
interest) from the Relevant Date (as defined in Condition 10).
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7
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Meetings
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The holder of a Permanent Global Bond will be treated as being
one person for the purposes of any quorum requirements of, or the
right to demand a poll at, a meeting of Bondholders and, at any such
meeting, as having one vote in respect of each JPY 10,000,000 in
principal amount of Bonds.
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8
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Euroclear and Clearstream, Luxembourg
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References herein to Euroclear and/or Clearstream, Luxembourg
shall be deemed to include references to any other clearing system
approved by the Trustee.
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9
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Authentication
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This Permanent Global Bond shall not be or become valid or
obligatory for any purpose unless and until authenticated by or on
behalf of the Principal Paying Agent.
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10
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Governing law
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This Permanent Global Bond is governed by, and shall be
construed in accordance with, the laws of England and Wales and the
Issuer has in the Bond Trust Deed submitted to the jurisdiction of the
courts of England for all purposes in connection with this Permanent
Global Bond.
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11
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Contracts (Rights of Third Parties) Act 1999
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No rights are conferred on any person under the Contracts
(Rights of Third Parties) Act 1999 to enforce any term of this
Permanent Global Bond, but this does not affect any right or remedy of
any person which exists or is available apart from that Act.
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In witness
whereof the Issuer has caused this Permanent Global Bond to be signed
manually or in facsimile by a person duly authorised on its behalf.
NUCLEAR ENERGY HOLDINGS, L.L.C.
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By:
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Officer
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By:
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Officer
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Issued in London on 13 October 2006.
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Certificate of authentication
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This Permanent Global Bond is duly authenticated without recourse, warranty or liability.
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- 60 -
Duly authorised
for and on behalf of
THE BANK OF NEW YORK
as Principal Paying Agent
- 61 -
The Schedule
Part 1
Payments of Principal and Interest
The following payments on this Permanent Global Bond have been made:
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Remaining
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principal amount
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of this Permanent
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Notation
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Global Bond
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made on
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following such
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behalf of
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Date made
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Interest paid
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Principal paid
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payment
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the Issuer
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- 62 -
Part 2
Exchanges of the Temporary Global Bond for this Permanent Global Bond
and Purchases and Cancellations
The following [exchanges of a part of the Temporary Global Bond for a like part of this
Permanent Global Bond] and purchases and cancellations of a part of this Permanent Global Bond have
been made:
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Part of principal
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Aggregate
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amount of the
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principal amount
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Temporary
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of this Permanent
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Global Bond
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Part of principal
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Global Bond
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exchanged for a
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amount of this
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following such
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like part of this
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Permanent Global
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exchange or
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Notation made
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Permanent
|
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Bond purchased
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purchase and
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on behalf of
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Date made
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Global Bond
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and cancelled
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cancellation
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the Issuer
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- 63 -
Part 2B
Form of Permanent Global Bond
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER
THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND
1287(a) OF THE INTERNAL REVENUE CODE.
NUCLEAR ENERGY HOLDINGS, L.LC. (a company with limited liability organised under the laws
of the State of Delaware, United States of America, whose registered office is c/o Corporation Trust
Center, 1209 Orange Street, Wilmington, Delaware 19801-1120)
PERMANENT GLOBAL BOND
representing up to
JPY78,000,000,000 FLOATING RATE BONDS DUE 2013
This Bond is a Permanent Global Bond without interest coupons in respect of a duly
authorised issue of JPY78,000,000,000 FLOATING RATE BONDS DUE 2013 of NUCLEAR ENERGY HOLDINGS,
L.L.C. (the
Issuer
), designated as specified in
the title hereof (the
Bonds
), limited to
the aggregate principal amount of JPY78,000,000,000 and constituted by a Bond Trust Deed dated
13 October 2006 (the
Bond Trust Deed
) between the Issuer and The Bank of New York as trustee
(the trustee for the time being thereof being herein called the
Trustee
). References herein
to the Conditions (or to any particular numbered Condition) shall be to the Conditions (or
that particular one of them) set out in the Schedule 4 to the Bond Trust Deed. The aggregate
principal amount from time to time of this Permanent Global Bond shall be JPY78,000,000,000
or, if less, that amount as shall be shown by the latest entry duly made in the Schedule
hereto.
1
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|
Promise to pay
|
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|
Subject as provided in this Permanent Global Bond the
issuer promises to pay to the bearer the principal amount of
this Permanent Global Bond together with the Call Premium
(if any) as consideration for the advance of the principal
and any other provisions from which the Issuer benefits in
respect of the Bonds (other than the use of the principal
secured from time to time) on the Interest Payment Date
falling on or about 15 March 2013 (or in whole or, where
applicable, in part on such earlier date as the said
principal amount or part respectively or Call Premium may
become repayable in accordance with the Conditions or the
Bond Trust Deed) and to pay interest as the sole
consideration for the use of the principal secured from time
to time semi annually in arrear on 15th of each March and
September of each year on the principal amount from time to
time of this Permanent Global Bond at rates determined in
accordance with the Conditions together with such other
amounts (if any) as may be payable, all subject to and in
accordance with the Conditions and the provisions of the
Bond Trust Deed.
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|
2
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|
Exchange for definitive Bonds and purchases
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This Permanent Global Bond will be exchangeable in
whole but not in part (free of charge to the holder) for
definitive Bonds upon (i) not less than 60 days written
notice from Euroclear Bank S.A./N.V. (
Euroclear
) and/or
Clearstream Banking, société anonyme (
Clearstream,
Luxembourg
) (acting on the instructions of any holder of an
interest in such Permanent Global Bond) to the Principal
Paying Agent; (ii) upon the happening of any of the events
defined in the Bond Trust Deed as Events of Default, (iii)
if either Euroclear or
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- 64 -
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Clearstream, Luxembourg is closed for business for a
continuous period of 14 days (other than by reason of
holiday, statutory or otherwise) or announces an intention
permanently to cease business or does in fact do so and no
alternative clearing system satisfactory to the Trustee is
available, or (iv) if the Issuer would suffer a
disadvantage as a result of a change in laws or regulations
(taxation or otherwise) or as a result of a change in the
practice of Euroclear and/or Clearstream, Luxembourg which
would not be suffered were the Bonds in definitive form and
a certificate to such effect signed by two Officers of the
Issuer is given to the Trustee. Thereupon (in the case of
(i) to (iii) above) the holder of this Permanent Global
Bond may give notice to the Issuer, and (in the case of
(iv) above) the Issuer may give notice to the Trustee and
the Bondholders, of its intention to exchange this
Permanent Global Bond for definitive Bonds on or after the
Exchange Date (as defined below).
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On or after the Exchange Date the holder of this
Permanent Global Bond may or, in the case of (iii) above,
shall surrender this Permanent Global Bond to or to the
order of the Principal Paying Agent. In exchange for this
Permanent Global Bond the Issuer will deliver, or procure
the delivery of, definitive Bonds in bearer form, serially
numbered, in the denominations of JPY 10,000,000 each with
interest coupons and one talon (
Coupons
) attached on
issue in respect of interest which has not already been
paid on this Permanent Global Bond in the denomination of
JPY10,000,000 each (in exchange for the whole of this
Permanent Global Bond).
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Exchange Date
means a day specified in the notice
requiring exchange falling not less than 60 days after that
on which such notice is given and on which banks are open
for business in the city in which the specified office of
the Principal Paying Agent is located and (except in the
case of (ii) above) in the city in which the relevant
clearing system is located.
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Upon (i) any exchange of a part of the Temporary
Global Bond for a part of this Permanent Global Bond or
(ii) the purchase by or on behalf of the Issuer or any
Subsidiary of the Issuer and cancellation of a part of this
Permanent Global Bond in accordance with the Conditions,
the portion of the principal amount hereof so exchanged
shall be endorsed by or on behalf of the Principal Paying
Agent on behalf of the Issuer on Part II of the Schedule
hereto, whereupon the principal amount hereof shall be
increased or, as the case may be, reduced for all purposes
by the amount so exchanged and endorsed. Upon the exchange
of the whole of this Permanent Global Bond for definitive
Bonds this Permanent Global Bond shall be surrendered to or
to the order of the Principal Paying Agent and cancelled
and, if the holder of this Permanent Global Bond requests,
returned to it together with any relevant definitive
Bonds.
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3
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Payments
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Until the entire principal amount of this Permanent
Global Bond has been extinguished, this Permanent Global
Bond shall (subject as hereinafter and in the Bond Trust
Deed provided) in all respects be entitled to the same
benefits as the definitive Bonds and shall be entitled to
the benefit of and be bound by the Bond Trust Deed.
Payments of principal and interest in respect of Bonds
represented by this Permanent Global Bond will be made
against presentation for endorsement and, if no further
payment falls to be made in respect of the Bonds, surrender
of this Permanent Global Bond to the order of the Principal
Paying Agent as shall have been notified to the Bondholders
for such purposes. Upon any payment of principal or
interest on this Permanent Global Bond the amount so paid
shall
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- 65 -
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be endorsed by or on behalf of the Principal
Paying Agent on behalf of the Issuer on Part 1 of the
Schedule hereto.
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Upon any payment of principal and endorsement of
such payment on Part 1 of the Schedule hereto, the
principal amount of this Permanent Global Bond shall be
reduced for all purposes by the principal amount so paid
and endorsed.
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All payments of any amounts payable and paid to
the bearer of this Permanent Global Bond shall be valid
and, to the extent of the sums so paid, effectual to
satisfy and discharge the liability for the moneys
payable hereon and on the relevant definitive Bonds and
Coupons.
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4
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Accountholders
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For so long as all of the Bonds are represented
by one or both of the Temporary Global Bond and this
Permanent Global Bond and such Global Bond(s) are held
on behalf of Euroclear and/or Clearstream, Luxembourg,
each person who is for the time being shown in the
records of Euroclear or Clearstream, Luxembourg as the
holder of a particular principal amount of such Bonds
(each an
Accountholder
) (in which regard any
certificate or other document issued by Euroclear or
Clearstream, Luxembourg as to the principal amount of
such Bonds standing to the account of any person shall,
in the absence of manifest error, be conclusive and
binding for all purposes) shall be treated as the holder
of such principal amount of such Bonds for all purposes
(including for the purposes of any quorum requirements
of, or the right to demand a poll at, meetings of the
Bondholders) other than with respect to the payment of
principal and interest on such Bonds, the right to which
shall be vested, as against the Issuer and the Trustee,
solely in the bearer of the relevant Global Bond in
accordance with and subject to its terms and the terms
of the Bond Trust Deed. Each Accountholder must look
solely to Euroclear or Clearstream, Luxembourg, as the
case may be, for its share of each payment made to the
bearer of the relevant Global Bond.
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5
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Notices
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For so long as all of the Bonds are represented
by one or both of the Temporary Global Bond and this
Permanent Global Bond and such Global Bond(s) are held
on behalf of Euroclear and/or Clearstream, Luxembourg,
notices to Bondholders may be given by delivery of the
relevant notice to Euroclear and/or Clearstream,
Luxembourg (as the case may be) for communication to the
relative Accountholders rather than by publication as
required by Condition 15. Any such notice shall be
deemed to have been given to the Bondholders on the
second day after the day on which such notice is
delivered to Euroclear and/or Clearstream, Luxembourg
(as the case may be) as aforesaid.
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Whilst any Bonds held by a Bondholder are
represented by a Global Bond, notices to be given by
such Bondholder may be given by such Bondholder to the
Principal Paying Agent through Euroclear and/or
Clearstream, Luxembourg, as the case may be, in such a
manner as the Principal Paying Agent and Euroclear
and/or Clearstream, Luxembourg, as the case may be, may
approve for this purpose.
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6
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Prescription
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Claims against the Issuer in respect of principal
and interest on the Bonds represented by the Temporary
Global Bond or this Permanent Global Bond will be
prescribed after ten
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- 66 -
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years (in the case of principal) and five years
(in the case of interest) from the Relevant Date (as
defined in Condition 10).
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7
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Meetings
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The holder of a Permanent Global Bond will be
treated as being one person for the purposes of any
quorum requirements of, or the right to demand a poll
at, a meeting of Bondholders and, at any such meeting,
as having one vote in respect of each JPY 10,000,000 in
principal amount of Bonds.
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8
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Euroclear and Clearstream, Luxembourg
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References herein to Euroclear and/or
Clearstream, Luxembourg shall be deemed to include
references to any other clearing system approved by the
Trustee.
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9
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Authentication
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This Permanent Global Bond shall not be or
become valid or obligatory for any purpose unless and
until authenticated by or on behalf of the Principal
Paying Agent.
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10
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Governing law
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This Permanent Global Bond is governed by, and
shall be construed in accordance with, the laws of
England and Wales and the Issuer has in the Bond Trust
Deed submitted to the jurisdiction of the courts of
England for all purposes in connection with this
Permanent Global Bond.
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11
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Contracts (Rights of Third Parties) Act 1999
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No rights are conferred on any person under the
Contracts (Rights of Third Parties) Act 1999 to enforce
any term of this Permanent Global Bond, but this does
not affect any right or remedy of any person which
exists or is available apart from that Act.
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In witness
whereof the Issuer has caused this Permanent Global Bond to be signed
manually or in facsimile by a person duly authorised on its behalf.
NUCLEAR ENERGY HOLDINGS, L.L.C.
Issued in London on 13 October 2006.
Certificate of authentication
This Permanent Global Bond is duly authenticated without recourse, warranty or liability.
Duly authorised for
and on behalf of
- 67 -
THE BANK OF NEW YORK
as Principal Paying Agent
- 68 -
The Schedule
Part 1
Payments of Principal and Interest
The following payments on this Permanent Global Bond have been made:
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Remaining
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principal amount of
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this Permanent
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Global Bond
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Notation
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following such
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made on behalf of
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Date made
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Interest paid
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Principal paid
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payment
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the Issuer
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- 69 -
Schedule 3
Form of Definitive Bond and Coupons and Conditions of the Bonds
Part 1
Form of Definitive Fixed Rate Bond
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE
UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN
SECTIONS 165(j) AND 1287(a) OF
THE INTERNAL REVENUE CODE.
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[
]
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[ISIN]
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[Serial No.]
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NUCLEAR ENERGY HOLDINGS, L.L.C. (a company with limited liability organised under the laws
of the State of Delaware, United States of America, whose registered office is c/o Corporation Trust
Center, 1209 Orange Street, Wilmington, Delaware 19801-1120)
JPY50,980,000,000 2.20 PER CENT. FIXED RATE BONDS DUE 2013
The issue of the Bonds was authorised by a resolution of the Board of Officers of NUCLEAR ENERGY
HOLDINGS, L.L.C. (the
Issuer
) passed on 2 October 2006.
This Bond is constituted by a Bond Trust Deed (the
Bond Trust Deed)
dated 13 October 2006 made
between the Issuer and The Bank of New York as trustee for the holders of the Bonds and issued as
bearer Bonds in the denomination of JPY10,000,000 each with Coupons attached in an aggregate
principal amount of JPY50,980,000,000.
The Issuer for value received and subject to and in accordance with the Conditions (the
Conditions
) endorsed hereon hereby promises to pay to the bearer as consideration for the advance
of the principal and any other provisions from which the Issuer benefits in respect of the Bonds
(other than the use of the principal secured from time to time) on the Interest Payment Date
falling on or about 15 March 2013 (or on such earlier date as the principal sum hereunder mentioned
may become repayable in whole or in part in accordance with the Conditions) the principal sum of:
JPY10,000,000
together with the Call Premium (if any) and together with interest as the sole consideration for
the use of the principal secured from time to time on the said principal sum at rates determined
in accordance with the said Conditions payable semi-annually in arrear on each Interest Payment
Date and together with such other amounts (if any) as may be payable, all subject to and in
accordance with the Conditions and the provisions of the Bond Trust Deed.
Neither this Bond nor the Coupons appertaining hereto shall be or become valid or obligatory for
any purpose unless and until this Bond has been authenticated by or on behalf of the Principal
Paying Agent.
- 70 -
In witness
whereof this Bond has been executed on behalf of the Issuer.
NUCLEAR ENERGY HOLDINGS, L.L.C.
Dated as of
, 200
.
Issued in [
].
Certificate of authentication
This Bond is duly authenticated
without recourse, warranty or liability.
Duly authorised
for and on behalf of
THE BANK OF NEW YORK
as Principal Paying Agent
- 71 -
Part 2
Form of Coupon
On the front:
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED
STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN
SECTIONS 165(j) AND 1287(a) OF THE
INTERNAL REVENUE CODE.
NUCLEAR ENERGY HOLDINGS, L.L.C.
JPY50,980,000,000 2.20 PER CENT. FIXED RATE BONDS DUE 2013
Coupon for the amount of
interest due in accordance with the
Conditions of the said Bonds
on the Payment Date
falling in [
] 20[
],
This Coupon is payable to bearer subject to such Conditions.
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[No.]
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[
]
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[ISIN]
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[Serial No.]
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- 72 -
Part 3
Form of Talon
On the front:
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE
UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN
SECTIONS 165(j) AND 1287(a) OF
THE INTERNAL REVENUE CODE.
NUCLEAR ENERGY HOLDINGS, L.L.C.
JPY50,980,000,000 2.20 PER CENT. FIXED RATE BONDS DUE 2013
On and after the Interest Payment Date falling in [
] 20[
] [
] further Coupons will be
issued at the specified office of any of the Paying Agents set out on the reverse hereof (and/or
any other or further Paying Agents and/or specified offices as may from time to time be duly
appointed and notified to the Bondholders) upon production and surrender of this Talon.
This Talon may, in certain circumstances, become void under the Conditions of the said Bonds.
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[No.]
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[
]
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[ISIN]
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[Serial No.]
|
- 73 -
Part 4
Form of Definitive Floating Rate Bond
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE
UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a)
OF THE INTERNAL REVENUE CODE.
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[
]
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[ISIN]
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[Serial No.]
|
NUCLEAR ENERGY HOLDINGS, L.L.C. (a company with limited liability organised under the laws
of the State of Delaware, United States of America, whose registered office is c/o Corporation Trust
Center, 1209 Orange Street, Wilmington, Delaware 19801-1120).
JPY78,000,000,000 FLOATING RATE BONDS DUE 2013
The issue of the Bonds was authorised by a resolution of the Board of Officers of NUCLEAR ENERGY
HOLDINGS, L.L.C. (the
Issuer)
passed on 2 October 2006.
This Bond
is constituted by a Bond Trust Deed (the
Bond Trust
Deed
) dated 13 October 2006 made
between the Issuer and The Bank of New York as trustee for the holders of the Bonds and issued as
bearer Bonds in the denomination of JPY10,000,000 each with Coupons attached in an aggregate
principal amount of JPY78,000,000,000.
The Issuer for value received and subject to and in accordance with the Conditions (the
Conditions
) endorsed hereon hereby promises to pay to the bearer as consideration for the
advance of the principal and any other provisions from which the Issuer benefits in respect of the
Bonds (other than the use of the principal secured from time to time) on the Interest Payment Date
falling on or about 15 March 2013 (or on such earlier date as the principal sum hereunder
mentioned may become repayable in whole or in part in accordance with the Conditions) the
principal sum of:
JPY10,000,000
together with the Call Premium (if any) and together with interest as the sole consideration for
the use of the principal secured from time to time on the said principal sum at rates determined
in accordance with the said Conditions payable semi-annually in arrear on each Interest Payment
Date and together with such other amounts (if any) as may be payable, all subject to and in
accordance with the Conditions and the provisions of the Bond Trust Deed.
Neither this Bond nor the Coupons appertaining hereto shall be or become valid or obligatory for
any purpose unless and until this Bond has been authenticated by or on behalf of the Principal
Paying Agent.
- 74 -
In witness
whereof this Bond has been executed on behalf of the Issuer.
NUCLEAR ENERGY HOLDINGS, L.L.C.
Dated as
of
, 20O
.
Issued in [
].
Certificate of authentication
This Bond is duly authenticated
without recourse, warranty or liability.
Duly authorised
for and on behalf of
The Bank of New York
as Principal Paying Agent
- 75 -
Part 5
Form of Coupon
On the front:
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED
STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN
SECTIONS 165(j) AND 1287(a) OF THE
INTERNAL REVENUE CODE.
NUCLEAR ENERGY HOLDINGS, L.L.C.
JPY78,000,000,000 FLOATING RATE BONDS DUE 2013
Coupon for the amount of
interest due in accordance with the
Conditions of the said Bonds
on the Payment Date
falling in [
] 20[
].
This Coupon is payable to bearer subject to such Conditions, under which it may become void before
its due date.
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[No.]
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[
]
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[ISIN]
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[Serial No.]
|
- 76 -
Part 6
Form of Talon
On the front:
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE
UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN
SECTIONS 165(j) AND 1287(a) OF
THE INTERNAL REVENUE CODE.
NUCLEAR ENERGY HOLDINGS, L.L.C.
JPY78,000,000,000 FLOATING RATE BONDS DUE 2013
On and after the Interest Payment Date falling in [
] 20[
] [
] further Coupons will be issued
at the specified office of any of the Paying Agents set out on the reverse hereof (and/or any other
or further Paying Agents and/or specified offices as may from time to time be duly appointed and
notified to the Bondholders) upon production and surrender of this Talon.
This Talon may, in certain circumstances, become void under the Conditions of the said Bonds.
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[No.]
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[
]
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[ISIN]
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[Serial No.]
|
- 77 -
Schedule 4
Terms and Conditions of the Bonds
The issue of the Bonds was authorised by a resolution adopted by the sole member of the
Issuer on 2 October 2006. The Bonds are constituted by a Bond
Trust Deed (the
Bond Trust Deed
)
dated 13 October 2006 (the
Closing Date
) between the Issuer and The Bank of New York (the
Trustee
which expression shall include all persons for the time being the trustee or trustees
under the Bond Trust Deed) as trustee for the holders of the Bonds
(the
Bondholders)
. These
terms and conditions include summaries of, and are subject to, the detailed provisions of the Bond
Trust Deed, which includes the form of the Bonds.
The Bonds have the benefit (to the extent applicable) of an agency agreement (as amended,
supplemented and/or restated from time to time, the
Agency Agreement)
dated the Closing Date
(to which the Issuer, the Trustee and The Bank of New York as initial Principal Paying Agent and
Calculation Agent are party). As used herein, each of
Principal Paying Agent
and
Paying
Agents
means the persons for the time being Principal Paying Agent and the Paying Agents under
the Agency Agreement.
On the Closing Date, the Issuer entered into a deed of charge
(the
Deed of Charge
), a US pledge
agreement (the
Issuer US Pledge Agreement
), a number of letter of credit transfer agreements
(the
Letter of Credit Transfer Agreements
) and the Parent entered into a US pledge agreement
(the
Parent Pledge Agreement
) each with the Trustee, and pursuant to which the Issuer and the
Parent respectively granted certain security to the Trustee for itself, the Bondholders, the
Couponholders, the Swap Counterparty, the Paying Agents, the Account Bank, the Cash Manager and
the Calculation Agent (together, the
Secured
Creditors
). The Deed of Charge, the Issuer US
Pledge Agreement, the Letter of Credit Transfer Agreements and the Parent Pledge Agreement are
referred to as the
Security Documents
.
On or before the Closing Date, Bank of America, N.A. issued an irrevocable direct pay letter of
credit to the Issuer in the amount of JPY13,546,173,000 (the
Interest Letter of Credit
) with
respect to certain amounts including ongoing transactional costs payable by the Issuer and Bank
of America, N.A. issued an irrevocable direct pay letter of credit to the issuer in the amount of
JPY4,299,333,000 (the
Principal Letter of Credit)
with respect to certain principal and/or
premia amounts payable by the Issuer. Under certain circumstances, the Issuer is also obliged to
procure the issue of an irrevocable direct pay letter of credit (the
Put Substitution Letter of
Credit
) in respect of payment of the Balance (as defined in the Bond Trust Deed).
On or prior to the Closing Date, the Issuer entered into an interest rate swap agreement with
Morgan Stanley Capital Services Inc. (the
Swap
Counterparty
) by execution of an ISDA Master
Agreement and related schedule, confirmation and credit support annex
(the
Swap Agreement
) to
hedge its exposure to fluctuations in the rate of interest payable on the Floating Rate Bonds.
The obligations of the Swap Counterparty under the Swap Agreement are guaranteed by
Morgan Stanley (the
Swap Guarantor
) under the terms of a swap guarantee (the
Swap Guarantee
and, together with the Swap Agreement, the
Swap Documents
).
On or before the Closing Date, the Issuer entered into (i) two put option agreements (the
Put
Option Agreements)
with Toshiba Corporation
(
Toshiba
) one in respect of the UK HoldCo Shares
and the other in respect of the US HoldCo Shares (each as defined below), pursuant to which the
Issuer has the right to put (in whole or in part) the HoldCo Shares (as defined below) to
Toshiba, (ii) investment agreements between Toshiba, the Parent, the Issuer and either Toshiba
Nuclear Energy Holdings (UK) Limited, a company incorporated in
England (
UK HoldCo
) or Toshiba
Nuclear Energy Holdings (US) Inc., a Delaware corporation (
US HoldCo
and, together with UK
HoldCo, the
HoldCos
) pursuant to which the Issuer subscribes for a certain number of shares in
UK HoldCo (the
UK HoldCo Shares
) and US HoldCo (the
- 78 -
US HoldCo Shares
and,
together with the UK HoldCo Shares, the
HoIdCo
Shares
) (the
Investment Agreements
), and (iii) shareholders agreements relating to each of US HoldCo and UK
HoldCo (the
Shareholders Agreements
) with, amongst others, Toshiba, pursuant to which Toshiba
and certain other shareholders shall have the right to call the HoldCo Shares from the Issuer.
The Bond Trust Deed, the Bonds, the Security Documents, the Agency Agreement, the Put Option
Agreements, the Investment Agreements, the Shareholders Agreements, the Interest Letter of
Credit, the Principal Letter of Credit, any Put Substitution Letter of Credit, the Swap
Documents, the cash management agreement between the Cash Manager, the Trustee and the Issuer
(the
Cash Management Agreement
), the accounts bank agreement between the Account Bank, the
Issuer and the Trustee (the
Accounts Bank
Agreement
), and the administrative services agreement
between the Parent and the Issuer (the
Administrative
Services Agreement
) are together referred
to as the
Transaction Documents
.
Certain statements in these Conditions are summaries of the detailed provisions appearing on the
face of the Bonds (which expression shall include the body thereof), in the Bond Trust Deed or
the Deed of Charge. Copies of the Transaction Documents, subject to any confidentiality
restrictions contained therein, are available for inspection during normal business hours at the
specified office of the Principal Paying Agent.
The Bondholders are entitled to the benefit of, are bound by, and are deemed to have notice of,
all the provisions of the Bond Trust Deed and the Security Documents, and to have notice of those
provisions of the Agency Agreement and the other Transaction Documents applicable to them.
1
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Form, Denomination and Title
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(a)
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Form and denomination
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The Bonds are serially numbered and in bearer form, in a minimum denomination of JPY
10,000,000.
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(b)
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Title
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Title to the Bonds and Coupons passes by delivery. The holder of any Bond or Coupon will
(except as otherwise required by law) be treated as its absolute owner for all purposes
(whether or not it is overdue and regardless of any notice of ownership, trust or any
interest in it, any writing on it, or its theft or loss) and no person will be liable for
so treating the holder.
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The Fixed Rate Bonds and the Floating Rate Bonds will each be initially represented by a
Temporary Global Bond without coupons, receipts or talons attached. The Temporary Global
Bond in respect of the Fixed Rate Bonds will represent the aggregate Principal Amount
Outstanding under the Fixed Rate Bonds and the Temporary Global Bond in respect of the
Floating Rate Bonds will represent the aggregate Principal Amount Outstanding under the
Floating Rate Bonds. The Temporary Global Bond in respect of the Fixed Rate Bonds will be
deposited on behalf of the subscribers of the Fixed Rate Bonds and the Temporary Global
Bond in respect of the Floating Rate Bonds will be deposited on behalf of the subscribers
of the Floating Rate Bonds with the Common Depositary for Clearstream Luxembourg and
Euroclear, on the Closing Date. Interests in each of the Temporary Global Bonds will be
exchangeable from and including the date which is 40 days after the Closing Date upon
certification as to non-U.S. beneficial ownership by the Bondholders, for interests in a
Permanent Global Bond, without coupons or talons attached, which will also be deposited
with the Common Depositary. Interests in a Permanent Global Bond will be exchangeable for
Definitive Bonds upon request by a relevant Bondholder and subject to the conditions
contained therein.
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- 79 -
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(a)
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Status
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The Bonds and Coupons constitute direct secured and limited recourse obligations of the
Issuer and shall at all times rank
pari passu
and rateably without any preference or
priority among themselves and will rank in priority to all unsecured obligations of the
Issuer, save for such obligations as may be preferred by provisions of law that are both
mandatory and of general application.
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(b)
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Bondholders interests
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The Bond Trust Deed and the Deed of Charge each contain provisions requiring the Trustee
to have regard to the interests of all the Bondholders equally as regards all powers,
trusts, authorities, duties and discretions of the Trustee. Except where expressly
provided otherwise and except in respect of the Swap Counterparty, so long as any of the
Bonds remain outstanding, the Trustee is not required to have regard to the interests of
any other persons entitled to the benefit of the Security.
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(c)
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Priority of Payments pre-enforcement
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Before enforcement of the Security, the Cash Manager will apply all of the Issuers
funds (excluding any Eligible Dividends, which may be distributed to the Parent and any
amounts and JGBs posted as collateral under the Swap Agreement and standing to the
credit of the Collateral Accounts) in accordance with the following priority of payments
(in each case only if and to the extent that payments or provision of a higher priority
have been made in full):
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(i)
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first, pro rata
and
pari passu,
in or towards payment of all fees,
costs, charges, expenses, liabilities and all other amounts due and payable to the
Trustee under the Deed of Charge and under the Bond Trust Deed (including the
Trustees remuneration) which have not been paid by the Issuer;
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(ii)
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second, pro rata
and
pari passu
in or towards payment of any amounts due
and payable to the Principal Paying Agent, the Paying Agents and the Calculation
Agent under the Agency Agreement, to the Account Bank under the Accounts Bank
Agreement and to the Cash Manager under the Cash Management Agreement;
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(iii)
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third, pro rata
and
pari passu,
in and towards payment or discharge of
any amounts due to third parties (other than amounts described in items (i), (ii),
(iv), (v), (vi), (vii), (viii) and (ix)) under obligations incurred in the course
of the Issuers business (and only as permitted or contemplated by the terms of the
Transaction Documents), including payment of the Issuers liability (if any) to
tax);
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(iv)
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fourth,
in or towards payment of any Fixed Amounts due to the Swap
Counterparty under the Swap Agreement;
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(v)
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fifth,
in or towards payment of due but unpaid interest (including
gross-up payments to the Bondholders under Condition 8 and Default Interest) under
the Bonds;
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(vi)
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sixth,
in or towards payment of the Principal Amount Outstanding under
the Bonds and any Call Premium;
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(vii)
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seventh,
in or towards payment of any amounts due to the Swap
Counterparty under the Swap Agreement and which are not paid either under paragraph
(iv) above or from the Swap Draw Amount (as defined below);
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(viii)
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eighth,
to pay any amounts due to the Servicer under the Administrative
Services Agreement; and
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(ix)
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ninth,
to pay the surplus (if any) to the Issuer.
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The Interest Letter of Credit shall be drawn for an amount equal to all payments outlined
in paragraphs (i), (ii), (iii), (iv), (v) and (viii) of the Pre-Enforcement Priority of
Payments (the
Pre-Enforcement Permitted Expenses Draw
Amount
). Any such Pre-Enforcement
Permitted Expenses Draw Amount shall form part of the funds of the Issuer to be applied
in accordance with the Pre-Enforcement Priority of Payments.
After the Pre-Enforcement Permitted Expenses Draw Amount has been drawn, separately, the
Interest Letter of Credit shall be drawn for an amount equal to the Swap Termination
Payment due from the Issuer to the Swap Counterparty (if any) and gross-up payments due
to the Swap Counterparty under Section 2(d) of the Swap Agreement (if any) (the
Swap
Draw Amount
), and such amount shall be paid to the Swap Counterparty. Any such Swap Draw
Amount shall not form part of the funds of the Issuer to be applied in accordance with
the Pre-Enforcement Priority of Payments.
Notwithstanding the foregoing, Acquisition Adjustment Amounts shall remain in the Issuer
Revenue Account until such time as the Bonds are redeemed, whereupon such amounts shall
be applied in accordance with the Pre-Enforcement Priority of Payments or, as the case
may be, the Post-Enforcement Priority of Payments.
In these Conditions,
Acquisition Adjustment Amounts
shall mean any amounts received by
the Issuer following the repurchase by either HoldCo of any of the Issuers HoldCo
Shares following a decrease in the price of the Underlying Acquisition (together with
any other amounts received by the Issuer in respect of a share buyback, share
repurchase, capital reduction or other equivalent event in respect of a HoldCo).
The Bonds are secured in favour of the Trustee, pursuant to the Security Documents, by:
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(i)
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a collateral assignment of all of the Issuers right, title and interest
in the Put Option Agreements, the Investment Agreements, the Shareholders
Agreements and the Administrative Services Agreement;
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(ii)
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an assignment by way of security of all of the Issuers right, title and
interest in the Agency Agreement, the Cash Management Agreement, the Swap Documents
and the Accounts Bank Agreement;
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(iii)
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a first ranking charge over the Issuer Accounts, and of the funds from
time to time standing to the credit of such account and any other investments
permitted to be made and held by or on behalf of the Issuer from time to time;
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(iv)
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a pledge by the Issuer of its holding of the US Shares;
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(v)
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a first ranking charge by the Issuer of its holding of the UK Shares;
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(vi)
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Letter of Credit Transfer Agreements pursuant to which the Issuer
transfers its interest in Interest Letter of Credit and the Principal Letter of
Credit to the Trustee;
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(vii)
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a pledge by the Parent of its membership interests in the Issuer;
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- 81 -
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(viii)
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a floating charge by the Issuer over the whole of the undertaking and assets
of the Issuer (other than any property or assets of the Issuer subject to an
effective fixed security set out in paragraphs (i) to (vii) above and dividends paid
out pursuant to Condition 4).
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The Security may be enforced by the Trustee following the service of a Bond Enforcement
Notice in accordance with Condition 13.
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(b)
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Application of Security
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Following enforcement of the Security, the Trustee shall apply all funds (except any Return
Amounts payable to the Swap Counterparty and standing to the credit of the Collateral
Accounts) received by the Issuer or the Trustee in accordance with the following priority
of payments (in each case only if and to the extent that payments or provisions of a higher
priority have been made in full):
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(i)
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first, pro rata
and
pari passu,
in or towards payment of all fees, costs,
charges, expenses, liabilities and all other amounts due and payable to the Trustee
under the Deed of Charge and under the Bond Trust Deed or any receiver appointed by
the Trustee (including any taxes required to be paid, the costs of realising any
Security and the Trustees remuneration) which have not been paid by the Issuer;
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(ii)
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second, pro rata
and
pari passu
in or towards payment of any amounts due and
payable to the Principal Paying Agent, the Paying Agents and the Calculation Agent
under the Agency Agreement, to the Account Bank under the Accounts Bank Agreement and
to the Cash Manager under the Cash Management Agreement;
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(iii)
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third,
in or towards payment of any amounts due to the Swap Counterparty
under the Swap Agreement;
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(iv)
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fourth,
in or towards payment of due but unpaid interest (including gross-up
payments to the Bondholders under Condition 8 and Default Interest) under the Bonds;
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(v)
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fifth,
in or towards payment of the Principal Amount Outstanding under the
Bonds and any Call Premium;
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(vi)
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sixth,
in or towards payment of any amounts due to the Swap Counterparty
under the Swap Agreement which are not paid either under paragraph (iii) above or
from the Swap Draw Amount;
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(vii)
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seventh,
to pay any amounts due to the Servicer under the Administrative
Services Agreement; and
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(viii)
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eighth,
to pay the surplus to the Issuer.
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The Interest Letter of Credit shall be drawn for an amount equal to all payments outlined
in paragraphs (i), (ii), (iii), (iv) and (vii) of the Post-Enforcement Priority of Payments
above (the
Post-Enforcement Permitted Expenses Draw
Amount
). Any such Post-Enforcement
Permitted Expenses Draw Amount shall form part of the funds of the Issuer to be applied in
accordance with the Post-Enforcement Priority of Payments.
After the Post-Enforcement Permitted Expenses Draw Amount is drawn, separately, from any
remaining amounts available to be drawn under the Interest Letter of Credit, an amount
equal to the Swap Draw Amount (if any) shall be drawn and paid to the Swap Counterparty.
Any such Swap Draw Amount shall not form part of the funds of the Issuer to be applied in
accordance with the Post-Enforcement Priority of Payments.
- 82 -
Eligible Dividends and Acquisition Adjustment Amounts shall form part of the funds of the
Issuer to be applied in accordance with the Post-Enforcement Priority of Payments.
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(c)
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Shortfall after application of proceeds
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If the net proceeds of the realisation of the Security under
paragraph (a) above (the
Net Proceeds
) are not sufficient to make all payments which but for the effect of this
provision would then be due in respect of the aggregate of all monies and other liabilities
whether actual or contingent for the time being due or owing by the Issuer to the Secured
Creditors (the
Secured Obligations
), then the obligations of the Issuer in respect of such
Secured Obligations will be limited to such Net Proceeds and the other assets of the Issuer
will not be available for payment of any Shortfall arising therefrom. Any such Shortfall
shall be borne by the Secured Creditors according to the priorities specified in the Deed of
Charge.
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The Issuer will not be obliged to make any further payment in excess of the Net Proceeds and
accordingly no debt shall be owed by the Issuer in respect of any Shortfall remaining after
realisation of the Security under Condition 13 and application of the proceeds in accordance
with the Deed of Charge. None of the Trustee, any Secured Creditor (nor any person acting on
behalf of any of them) may take any further action to recover such Shortfall.
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In this Condition
Shortfall
means the difference between the amount of the Net Proceeds
and the amount which would but for this Condition 3(c) have been due in respect of the
Secured Obligations.
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(d)
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Trustee not liable for Security
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The Bond Trust Deed and the Deed of Charge contain provisions for the relief of the Trustee
from responsibility for the validity, sufficiency and enforceability (which the Trustee has
not investigated) of the Security created over the charged property. The Bond Trust Deed
and the Deed of Charge also relieve the Trustee of liability for, among other things, not
having made or not having caused to be made on their behalf the searches, registrations,
investigations and enquiries which a prudent chargee would normally have been likely to
make in entering into the Deed of Charge.
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4
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Covenants of and Restrictions on the Issuer
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(a)
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Covenants of the Issuer
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Unless otherwise provided and as more fully described in the Transaction Documents, the
Issuer covenants to the Trustee on behalf of the holders of the Bonds that, for so long as
any Bonds remain outstanding, the Issuer will:
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(i)
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take (to the extent it is directed to do so by the Trustee) such steps as are
reasonable to enforce all its rights:
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(A)
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as required by the terms of the Bond Trust Deed;
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(B)
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in respect of the Security; and
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(C)
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under the Transaction Documents;
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(ii)
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comply with its obligations under the Bonds, the Bond Trust Deed and each
other Transaction Document to which it is a party;
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(iii)
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keep proper books of account in accordance with its obligations under
applicable laws (such books to be maintained at the Issuers registered office) and
allow the Trustee and any person appointed by the Trustee access to the books of
account of the Issuer at all reasonable times
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during normal business hours and shall send to any such person on request or, if so
stipulated, at specified intervals, copies thereof and other supporting documents
relating thereto as such person may specify;
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(iv)
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at all times maintain its tax residence in the United States of America and
will not establish a branch, agency, permanent establishment or place of business or
register as a company outside the United States of America;
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(v)
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ensure that it is not treated as being resident or having a permanent
establishment in the United Kingdom for United Kingdom tax purposes and will not
establish a place of business in the United Kingdom or appoint an agent who will have
and habitually exercise in the United Kingdom an authority to do business on behalf
of the Issuer;
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(vi)
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pay its debts generally as they fall due;
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(vii)
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do all such things as are necessary to maintain its corporate existence;
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(viii)
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to the extent the Issuer is able to, supply such information to the rating agencies
as they may reasonably request in connection with the rating of the Bonds;
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(ix)
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at all times use all reasonable efforts to minimise taxes and any other costs
arising in connection with its activities;
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(x)
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have at least one independent director from Lord Securities Corporation (or
such other replacement independent director whose appointment will not negatively
impact the rating of the Bonds), who is not a director, employee or shareholder of any
member of the Shaw Group;
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(xi)
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notify the Trustee and the Bondholders promptly (and in any event within five
days) upon completion of the Underlying Acquisition;
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(xii)
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notify the Trustee and the Bondholders promptly upon becoming aware that a
Toshiba Event has occurred (or upon exercise of a Put Right or a Call Option);
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(xiii)
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where it is exercising the Put Right (which it shall only do in accordance with
these Conditions) under one of the Put Option Agreements, exercise the Put Right under
the other Put Option Agreement at the same time;
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(xiv)
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exercise the Put Rights on the date (the
Automatic
Put Option Date
) that is
160 days prior to the Maturity Date by sending a Put Exercise Notice to Toshiba in
accordance with each Put Option Agreement;
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(xv)
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exercise the Put Rights within one Business Day after the commencement of the
Exercise Period if, as of 31 March 2010, the Interest Letter of Credit has not been
increased to such amount (or a new Interest Letter of Credit has not been issued in
such amount) as the Cash Manager estimates will be required to meet all payments for
which the Interest Letter of Credit may be drawn (in accordance with the terms of
these Conditions and the Bond Trust Deed) in the period from the end of the Initial
Period to the Maturity Date;
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(xvi)
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if at any time during the Exercise Period Toshibas senior-unsecured
long-term credit rating is rated Ba3 or lower by Moodys, exercise the Put Rights
within five Business Days of the later of (a) the occurrence of such rating downgrade,
as the case may be, and (b) the commencement of the Exercise Period;
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(xvii)
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(a) notify the Trustee as soon as reasonably practicable, and in any event within
five Business Days, following receipt of a request by any shareholder for a valuation
of either HoldCo in
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accordance with section 7.06 of the applicable Shareholders Agreement and (b)
exercise the Put Rights within 5 Business Days after the receipt by the Issuer of a
Call Option Exercise Notice (which has not been withdrawn within the relevant time
period permitted under the applicable Shareholders Agreement) with respect to which
the specified Call Price of the HoldCo Shares is less than or equal to the Principal
Amount Outstanding under the Bonds (provided that, for the avoidance of doubt, if
the Issuer receives multiple Call Option Exercise Notices, the aggregate Call Price
for all HoldCo Shares subject to such Call Option Exercise Notices shall be used for
the purposes of the foregoing calculation);
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(xviii)
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after the end of the Initial Period, exercise the Put Rights within 5 Business Days
of receipt of notification from the Cash Manager that there is a shortfall, which has
not been remedied by the Issuer within the period permitted in the Cash Management
Agreement, between the amounts anticipated to be required to be drawn under the
Interest Letter of Credit on or prior to the next two Interest Payment Dates and the
amounts available under the Interest Letter of Credit, as calculated in accordance
with the terms of the Cash Management Agreement;
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(xix)
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in the event of a liquidation of a HoldCo in which no securities or other
assets are distributed, exercise the Put Rights immediately upon commencement of the
Exercise Period;
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(xx)
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if directed by the Trustee (who must be directed by an Extraordinary
Resolution or Written Resolution of the Bondholders), exercise the Put Rights during
the Exercise Period if a Toshiba Event (other than receipt of a Call Option Exercise
Notice for which the specified Call Price of the HoldCo Shares is greater than the
Principal Amount Outstanding under the Bonds (provided that, for the avoidance of
doubt, if the Issuer receives multiple Call Option Exercise Notices, the aggregate
Call Price for all HoldCo Shares subject to such Call Option Exercise Notices shall be
used for the purposes of the foregoing calculation)) has occurred, within five
Business Days of being directed to do so by the Trustee;
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(xxi)
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exercise the Put Rights during the Exercise Period if Toshiba or any of the
other parties to the Shareholders Agreements takes any action which has a Material
Adverse Effect (as defined below);
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(xxii)
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draw on the available Letters of Credit in sufficient time to enable the Issuer to
use the proceeds of the Letters of Credit to pay (A) the Principal Amount Outstanding,
(B) any accrued interest, (C) any amounts due to the Swap Counterparty under the Swap
Agreement (including any Swap Termination Payments and gross-up payments to the Swap
Counterparty), (D) ongoing fees and expenses incurred by the Issuer, (E) amounts due
to the Servicer under the Administrative Services Agreement, (F) Default Interest, (G)
payments due to the Bondholders under Condition 8 and (H) the Call Premium (if any) in
accordance with the Pre-Enforcement Priority of Payments and the Post-Enforcement
Priority of Payments (as the case may be);
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(xxiii)
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if, in any of the situations described in paragraphs (xiv) to (xxi) above, it
decides to either (i) exercise the Put Rights in part only or (ii) not to exercise the
Put Right at all, on or prior to (x) the date on which it exercises the Put Rights in
part or (y) the date on which it would otherwise have been obliged to exercise the Put
Rights, it shall be obliged to procure that a Put Substitution Letter of Credit Bank
issues a direct pay irrevocable letter of credit to the Trustee, in form and substance
satisfactory to the Trustee, for an amount equal to the aggregate of the Principal
Amount Outstanding under the Bonds and the Call Premium (if applicable) less amounts
available to be drawn under the Principal Letter of Credit (and, in the case of a
partial exercise only, the aggregate Put Price for the HoldCo Shares subject to such
partial exercise).
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(b)
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Restrictions on the Issuer
|
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As more fully described in the Bond Trust Deed, for so long as any of the Bonds remain
outstanding, save as contemplated in the Transaction Documents, the Issuer covenants to the
holders of such Bonds that (to the extent applicable) it will not, without the prior
written consent of the Trustee:
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(i)
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except as permitted by the Trust Deed, sell, factor, discount, transfer,
assign, lend or otherwise dispose of, nor create or permit to be outstanding any
mortgage, pledge, lien, charge, encumbrance or other security interest over, any of
its property or assets (including the HoldCo Shares) or any part thereof or interest
therein;
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(ii)
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agree to any share buyback, share repurchase, capital reduction or other
equivalent event in respect of a HoldCo, at a price per HoldCo Share less than the
Put Price per HoldCo Share under the terms of the Put Option Agreements where the Put
Rights have been exercised as a result of a Toshiba Event (as such price (being, as
at the date hereof, JPY119,425,926 (equivalent) per HoldCo Share) may be adjusted
from time to time under the terms of the Put Option Agreements to take account of any
stock dividend, split, reverse split, combination or recapitalisation of the HoldCo
Shares);
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(iii)
|
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engage in any business other than:
|
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(A)
|
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acquiring and holding any property, assets or rights that are capable of
being effectively charged in favour of the Trustee under the Security Documents;
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(B)
|
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issuing and performing its obligations under the Bonds;
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(C)
|
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entering into, exercising its rights and performing its
obligations, under or enforcing its rights under the Bond Trust Deed and each other Transaction Document to which
it is a party, as applicable; or
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(D)
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|
performing any act incidental to or necessary in connection with any of the
above;
|
|
(iv)
|
|
to the extent it has a Material Adverse Effect, permit the validity or
effectiveness of any of the Transaction Documents, or the priority of the security
interests created thereby, to be amended, terminated, postponed or discharged, or
consent to any variation of, or exercise any powers of consent or waiver pursuant to
the terms of, or amend any term or condition of the Bonds (save in accordance with
these Conditions and the Bond Trust Deed) or any of the Transaction Documents or
permit any party to any of the Transaction Documents or the Security or any other
person whose obligations form part of the Security to be released from such
obligations or dispose of all or any part of the Security;
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Material Adverse Effect
means any effect which has or is reasonably likely to have
a material adverse effect on (a) the ability of the Issuer or Toshiba to perform
and comply with any of its obligations under the Transaction Documents to which it
is a party, (b) the validity, legality or enforceability of any Transaction
Document; and/or (c) the interests of the Secured Creditors or the Issuer under or
in connection with the Put Option Agreements (or, prior to completion of the
Underlying Acquisition, the Investment Agreements);
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(v)
|
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agree to any amendment to any provision of, or grant any waiver or consent or
exercise any voting right under the Bond Trust Deed or any other Transaction Document
to which it is a party in a manner which has a Material Adverse Effect or agree with
Toshiba to extend the date by which the Underlying Acquisition must be completed to a
date later than 27 October 2006;
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- 86 -
|
(vi)
|
|
incur any indebtedness for borrowed money other than in respect of the Bonds or
the Swap Agreement or give any guarantee or indemnity in respect of any indebtedness
or of any obligation of any person;
|
|
|
(vii)
|
|
amend its constitutive documents;
|
|
|
(viii)
|
|
have any subsidiaries (other than the HoldCos and their subsidiaries) or establish
any offices, branches or other establishments (as that term is used in article 2(h)
of Council Regulation (EC) No. 1346/2000 on Insolvency Proceedings) anywhere in the
world except in the United States of America;
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|
|
(ix)
|
|
have any employees;
|
|
|
(x)
|
|
enter into any reconstruction, amalgamation, merger or consolidation;
|
|
|
(xi)
|
|
except as permitted by the Trust Deed, convey or transfer all or a
substantial part of its properties or assets (in one or a series of transactions) to
any person;
|
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|
(xii)
|
|
issue any membership interests (other than such membership interests as are
in issue as at the Closing Date) nor redeem or purchase any of its issued membership
interests capital, nor declare or pay any dividends or distributions, save any
dividends or similar amounts received from the HoldCos in respect of the HoldCo
Shares (
Eligible Dividends
) and paid by the Issuer prior to the occurrence of an
Event of Default;
|
|
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(xiii)
|
|
enter into any material agreement or contract with any person (except as permitted
by the Trust Deed);
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|
(xiv)
|
|
terminate the Swap Documents prior to (a) the redemption of the Bonds in full
or (b) procuring for the replacement of the Swap Agreement with a swap agreement on
substantially the same terms (including as to pricing) and in form and substance
satisfactory to the Trustee;
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(xv)
|
|
release from or terminate the appointment of the Trustee under the Bond Trust
Deed, the Accounts Bank under the Account Bank Agreement, the Servicer under the
Administrative Services Agreement, the Principal Paying Agent, a Paying Agent or the
Calculation Agent under the Agency Agreement or the Cash Manager under the Cash
Management Agreement;
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(xvi)
|
|
enter into any lease in respect of, or own, premises;
|
|
|
(xvii)
|
|
have an interest in any bank account other than the Issuer Accounts, unless such
account or interest therein is charged to the Trustee on terms acceptable to it;
|
|
|
(xviii)
|
|
subscribe for new shares in the HoldCos, exercise any rights of first offer (in
accordance with section 7.04 of the Shareholders Agreements), exercise any call rights
in respect of the HoldCo Shares of another shareholder in either Holdco (in accordance
with section 7.06 of either Shareholders Agreement) or exercise any tag-along rights
(in accordance with section 7.04 of either Shareholders Agreement);
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(xix)
|
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agree to the terms of any sale and purchase agreement with another
shareholder of a HoldCo which has served a Call Option Exercise Notice unless the
provisions of Condition 4(a)(xvi) requiring exercise of the Put Rights do not apply;
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(xx)
|
|
serve a Put Exercise Notice other than as required in accordance with
paragraphs (xiv) to (xxi) of Condition 4(a);
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|
(xxi)
|
|
apply the proceeds from the Interest Letter of Credit towards any payments
other than those set out in Condition 2 paragraphs (c) (i), (ii), (iii), (iv), (v)
and (viii) and Condition 3 paragraphs (i), (ii), (iii), (iv) and (vii) or in payment
of the Swap Draw Amount; or
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(xxii)
|
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make any election to choose or change its US federal income tax classification or
take any other action to cause it to be a corporation for US federal income tax
purposes.
|
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(c)
|
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Separateness Covenants
|
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|
The Issuer shall maintain its separate existence and, specifically, shall conduct its
affairs in accordance with the following:
|
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(i)
|
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The Issuer shall: (1) maintain and prepare separate financial reports (if
any) and financial statements (if any) in accordance with US GAAP, showing its assets
and liabilities separate and apart from those of any other person, and will not have
its assets listed on the financial statement of any other person (provided, however,
that the Issuers assets may be included in a consolidated financial statement of the
Parent if inclusion on such consolidated financial statement is required to comply
with the requirements of US GAAP, but only if (x) such consolidated financial
statement shall be appropriately footnoted to the effect that the Issuers assets are
owned by the Issuer, are not available to satisfy the debts and other obligations of
the Parent, affiliate or any other person or entity, and that they are being included
on the consolidated financial statement of the Parent to comply with the requirements
of US GAAP, and (y) such assets shall be listed on the Issuers own separate balance
sheet); (2) maintain its books, records and bank accounts separately from those of
its affiliates and any other person; (3) not permit any affiliate or any other person
independent access to its bank accounts, except as specifically provided in the
Transaction Documents; and (4) file its own tax returns separate from those of any
other person or entity, except to the extent that the Issuer is treated as a
disregarded entity for tax purposes or is not otherwise required to file tax
returns under applicable law.
|
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(ii)
|
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The Issuer shall not commingle or pool any of its funds or assets with those
of any affiliate or any other person, and it shall hold all of its assets in its own
name.
|
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|
(iii)
|
|
The Issuer shall conduct its own business in its own name and shall not
operate, or purport to operate, collectively as a single business entity with respect
to any person.
|
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|
(iv)
|
|
The Issuer shall, insofar as is consistent with commercial and business
circumstances affecting its business and financial condition, remain solvent and pay
its own debts, liabilities and expenses (including overhead expenses, if any) only out
of its own assets as the same shall become due; provided that this covenant shall not
constitute a guaranty or keep well obligation of the Parent, affiliate, any
administrator of or with respect to the Issuer or any other person in respect of the
Issuer or its debt, liabilities or expenses, or any financial or balance sheet
condition or ratio of or relating to the Issuer.
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(v)
|
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The Issuer has done, or causes to be done, and shall do, or cause to be done,
all things necessary to observe all Delaware limited liability company formalities and
other organisational formalities, and preserve its existence, and it shall not, nor
shall it permit any affiliate or any other person to, amend, modify or otherwise
change the limited liability agreement in a manner which would adversely affect the
existence of the Issuer as a special purpose entity.
|
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|
(vi)
|
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The Issuer does not, and shall not, (i) guarantee, become obligated for, or
hold itself or its credit out to be responsible for or available to satisfy, the debts
or obligations of any other person or
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- 88 -
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(ii) control the decisions or actions respecting the daily business or affairs of any
other person except as permitted by or pursuant to the Transaction Documents.
|
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(vii)
|
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The Issuer shall, to the extent it utilizes stationery, invoices and
checks, maintain and utilize separate stationery, invoices and checks bearing its own
name.
|
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|
(viii)
|
|
The Issuer shall, at all times, hold itself out to the public as a legal entity
separate and distinct from any other person and shall correct any known
misunderstanding regarding its separate identity.
|
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|
(ix)
|
|
The Issuer shall not identify itself as a division of any other person.
|
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|
(x)
|
|
The Issuer shall maintain its assets in such a manner that it will not be
costly or difficult to segregate, ascertain or identify its individual assets from
those of any affiliate or any other person.
|
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|
(xi)
|
|
The Issuer shall not use its separate existence to abuse creditors or to
perpetrate a fraud, injury or injustice on creditors in violation of applicable law.
|
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|
(xii)
|
|
The Issuer shall not, in connection with the Transaction Documents, act
with an intent to hinder, delay or defraud any of its creditors in violation of
applicable law.
|
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|
(xiii)
|
|
The Issuer shall maintain an arms length relationship with its affiliates and the
Parent.
|
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|
(xiv)
|
|
The Issuer shall not grant a security interest or otherwise pledge its
assets for the benefit of any other person, except as permitted by or pursuant to the
Bond Documents.
|
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|
(xv)
|
|
The Issuer shall not acquire any securities or debt instruments of the
Parent or its affiliates other than the Issuers subsidiaries.
|
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|
(xvi)
|
|
The Issuer shall not make loans or advances to any person, except as
permitted by or pursuant to the Bond Documents.
|
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|
(xvii)
|
|
The Issuer shall make no transfer of its assets except as permitted by or pursuant
to the Transaction Documents.
|
Each Bond will bear interest on its Principal Amount Outstanding from and including the Closing
Date (or such later date as may be agreed between the Issuer and the Manager) at the Coupon (as
defined below), payable semi-annually in arrear on 15 March and 15 September in each year (each,
an
Interest Payment Date
). The first Interest Payment Date will be on 15 March 2007. If any
Interest Payment Date for the Floating Rate Bonds would otherwise fall on a day which is not a
Business Day (as defined below), it shall be postponed to the next day which is a Business Day
provided that, if such postponement would result in the Interest Payment Date falling in the next
calendar month, such date shall be brought forward to the immediately preceding Business Day. The
period beginning on the Issue Date and ending on the first Interest Payment Date and each
successive period beginning on an Interest Payment Date and ending on the next succeeding
Interest Payment Date is called an
Interest
Period
. Each Bond will cease to bear interest from
its due date for redemption unless, upon due presentation, payment of principal is improperly
withheld or refused in which case it shall continue to bear interest at the rate set out in
paragraph (h) below.
|
(b)
|
|
Rate of Interest on the Fixed Rate Bonds
|
- 89 -
The
Fixed Rate Bonds will bear interest at a fixed rate of 2.20 per cent, per annum, calculated on
the basis of a 360-day year consisting of 12 months of 30 days each and, in the case of an
incomplete month, the number of days elapsed.
|
(c)
|
|
Rate of Interest on the Floating Rate Bonds
|
Subject as provided below, the rate of interest from time to time in respect of the Floating Rate
Bonds (the
Rate of Interest
) shall be the aggregate of (i) LIBOR for the relevant Interest
Period, as determined on the relevant LIBOR Determination Date by the Calculation Agent and (ii)
the Margin.
LIBOR from time to time in respect of the Floating Rate Bonds will be determined by the
Calculation Agent on the following basis:
On the second Business Day before the beginning of each Interest Period (each
a LIBOR
Determination Date
and
Interest Determination
Date
) the Calculation Agent will determine the
offered rate for six-month (except for the first Interest Period which shall be interpolated
between five-month and six-month) JPY deposits as at 11.00 a.m. (London time) on the LIBOR
Determination Date in question (
LIBOR
). Subject to the provisions of this sub-paragraph below,
LIBOR for the relevant Interest Period means a rate equal to the Floating Rate that would be
determined by the Calculation Agent under a Swap Transaction under the terms of an agreement
incorporating the ISDA Definitions and under which the Floating Rate Option is JPY-LIBOR-BBA,
the Designated Maturity is six months (except for the initial Interest Period which shall be
interpolated between five months and six months) and the relevant Reset Date is the first date of
that Interest Period.
For the purposes of this paragraph,
Floating Rate, Floating Rate Option, Designated
Maturity, Reset Date
and
Swap Transaction
have the meanings given to those terms in the ISDA
Definitions.
|
(d)
|
|
Determination of Rate of Interest and calculation of Coupon Amount
|
|
(i)
|
|
The Calculation Agent will, as soon as practicable after 11.00 a.m. (London
time) on each LIBOR Determination Date, determine the LIBOR for the applicable
Interest Period.
|
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|
(ii)
|
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The Calculation Agent will, as soon as practicable after 11.00 a.m. (London
time) on each Interest Determination Date, determine the Rate of Interest and
calculate the amount of interest payable for each JPY10.000,000 in principal amount of
Floating Rate Bonds (the
Coupon Amount
) for the relevant Interest Period. The Coupon
Amount shall be calculated by applying the Rate of Interest to each JPY10,000,000 in
principal amount of Floating Rate Bonds, multiplying such product by the actual number
of days in the relevant Interest Period divided by 360 and rounding the resulting
figure to the nearest JPY (half a JPY being rounded upwards). The determination of the
Rate of Interest and the Coupon Amount by the Calculation Agent shall (in the absence
of manifest error) be final and binding upon all parties.
|
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(e)
|
|
Publication of Rate of Interest and Coupon Amount
|
The Calculation Agent will cause LIBOR, the Rate of Interest and the Coupon Amount for each
Interest Period and the relevant Interest Payment Date to be notified to the Trustee, each of the
Paying Agents and Bondholders as soon as possible after their determination but in no event later
than the third business day thereafter. The Coupon Amount and Interest Payment Date so published
may subsequently be amended (or appropriate alternative arrangements made with the consent of the
Trustee by way of adjustment) without notice in the event of an extension or shortening of the
Interest Period. If the Floating Rate Bonds become due and payable under Condition 6, the accrued
interest and the Rate of Interest payable in respect of the Floating Rate Bonds shall
nevertheless continue to be calculated as previously by the Calculation Agent in accordance
- 90 -
with this Condition but no publication of amounts so calculated need be made unless the Trustee
otherwise requires.
|
(f)
|
|
Determination or calculation by Trustee
|
If the Calculation Agent does not at any time for any reason so determine the LIBOR, the Rate
of Interest or the Coupon Amount for an Interest Period, the Trustee shall do so and such
determination or calculation shall be deemed to have been made by the Calculation Agent. In
doing so, the Trustee shall apply the foregoing provisions of this Condition, with any necessary
consequential amendments, to the extent that, in its opinion, it can do so, and, in all other
respects it shall do so in such manner as it shall deem fair and reasonable in all the
circumstances.
The Issuer will procure that, so long as any Floating Rate Bond is outstanding, there shall at
all times be a Calculation Agent for the purposes of the Floating Rate Bonds. If the Calculation
Agent is unable or unwilling to continue to act as Calculation Agent, or if the Calculation Agent
fails duly to establish the Rate of Interest for any Interest Period or to calculate the Coupon
Amount, the Issuer shall (with the prior approval of the Trustee) appoint some other leading bank
engaged in the London interbank market (acting through its principal London office) to act as
such in its place. The Calculation Agent may not resign its duties without a successor having
been so appointed.
If the Issuer fails to pay any amount payable by it under the Transaction Documents on its due
date, interest shall accrue on the overdue amount from the due date up to the date of actual
payment (both before and after judgment) at a rate per annum which is the sum of two per cent,
and the Coupon, pro rata over the relevant period (the
Default Interest
).
ISDA Definitions
means the 2000 ISDA Definitions, as published by the International
Swaps and Derivatives Association, Inc., unless otherwise specified hereon.
Margin
means 0.70 per cent, per annum.
Coupon
means 2.20 per cent, per annum in relation to the Fixed Rate Bonds and the Rate of
Interest determined in accordance with (c) and (d) above, in relation to the Floating Rate Bonds.
Principal Amount Outstanding
means, on any day,
|
(a)
|
|
in relation to any Bond, the principal amount of that Bond upon issue;
|
|
|
(b)
|
|
in relation to all Fixed Rate Bonds outstanding at any time, the aggregate of the amount in
(a) in respect of all Fixed Rate Bonds;
|
|
|
(c)
|
|
in relation to all Floating Rate Bonds outstanding at any time, the aggregate of the amount
in (a) in respect of all Floating Rate Bonds; and
|
|
|
(d)
|
|
in relation to all Bonds outstanding at any time, the aggregate of the amount in (a) in
respect of all Bonds outstanding.
|
Business Day
means a day (other than Saturday and Sunday) on which commercial banks in London
and Tokyo are open for business.
- 91 -
6
|
|
Redemption and Purchase
|
|
(a)
|
|
Final redemption
|
|
|
|
|
Unless previously redeemed, or purchased and cancelled, the Bonds will be redeemed at
their Principal Amount Outstanding together with accrued interest on the Interest
Payment Date falling on or about 15 March 2013 (the
Maturity Date
). The Bonds may not
be redeemed at the option of the Issuer in whole or in part other than in accordance
with this Condition, but without prejudice to Condition 9.
|
|
|
(b)
|
|
Redemption for taxation reasons
|
|
|
|
|
The Bonds may be redeemed on an Interest Payment Date at the option of the Issuer in
whole, but not in part, at any time, on giving not less than 30 nor more than 60 days
notice to the Bondholders (which notice shall be irrevocable), at their Principal Amount
Outstanding, (together with interest accrued to the date fixed for redemption), if (i)
the Issuer satisfies the Trustee immediately prior to the giving of such notice that it
has or will become required to pay additional amounts as provided or referred to in
Condition 8 as a result of any change in, or amendment to, the laws or regulations of
Delaware, the United States of America or of any other jurisdiction or any political
subdivision or any authority thereof or therein having power to tax, or any change in the
application or official interpretation of such laws or regulations, which change or
amendment becomes effective on or after 10 October 2006, (ii) such obligation cannot be
avoided by the Issuer taking reasonable measures available to it, provided that no such
notice of redemption shall be given earlier than 90 days prior to the earliest date on
which the Issuer would be obliged to pay such amounts were a payment in respect of the
Bonds then due, and (iii) the Issuer has, prior to giving the notice referred to below,
delivered a certificate addressed to the Trustee certifying to the satisfaction of the
Trustee that it will have the necessary funds on such date to redeem all the Bonds each
in an amount equal to their Principal Amount Outstanding. Prior to the publication of any
notice of redemption pursuant to this paragraph, the Issuer shall deliver to the Trustee
a certificate signed by an officer of the Issuer stating that the obligation referred to
in (i) above cannot be avoided by the Issuer taking reasonable measures available to it
and confirming the condition precedent set out in (ii) above, and the Trustee shall be
entitled to accept such certificate as sufficient evidence of the satisfaction of the
condition precedents set out in (i) and (ii) above, in which event it shall be conclusive
and binding on the Bondholders save that the Trustee shall also be entitled to request
legal opinions in form and substance satisfactory to it to confirm any of matters
referred to in this Condition.
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(c)
|
|
Unwind
|
|
|
|
|
The Issuer shall, if the Underlying Acquisition is not completed on or before 27 October
2006, redeem the Bonds at their Principal Amount Outstanding together with accrued
interest, on the date falling five Business Days after receipt by the Issuer of the
Unwind Payment from Toshiba.
|
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|
(d)
|
|
Mandatory Redemption
|
|
|
|
|
The Issuer shall, upon giving notice of at least 30 days (or such shorter period as
exists until the Early Redemption Date) to Bondholders, redeem the Bonds at their
Principal Amount Outstanding together with accrued interest plus the Call Premium (if
any) on the Early Redemption Date.
|
|
|
|
|
Early Redemption Date
means the date which is:
|
|
(i)
|
|
the next Interest Payment Date following the receipt of (x) the Put
Price (and, as the case may be, the proceeds of a draw under a Put Substitution
Letter of Credit in respect of a partial exercise of the Put Right), or the Call
Price (as applicable) or (y) the date of issue of the Put
|
- 92 -
|
|
|
Substitution Letter of Credit (where the amount thereof is equal to the Principal
Amount Outstanding under the Bonds);
|
|
(ii)
|
|
or otherwise, two Business Days following receipt of the Put Price, if
the Put Right has been exercised (x) as a result of Toshibas senior-unsecured
long-term credit being rated Ba3 or lower by Moodys, (y) prior to 31 March 2010
(except where the Call Option has been exercised and no other Toshiba Event has
occurred) or (z) as a result of direction by an Extraordinary Resolution.
|
Call Premium
means, if the Bonds are redeemed prior to 31 March 2010 pursuant to the
exercise of the Call Option (or where the Put Right is exercised subsequent to the
delivery of a Call Option Exercise Notice), 2.0 per cent of the Principal Amount
Outstanding under the Bonds.
|
(e)
|
|
Purchase
|
|
|
|
|
The Issuer may at any time purchase Bonds in the open market or otherwise at any price
(provided that they are purchased together with all unmatured Coupons relating to them).
Any purchase by tender shall be made available to all Bondholders alike. The Bonds so
purchased, while held by or on behalf of the Issuer, shall not entitle the holder to
vote at any meetings of the Bondholders and shall not be deemed to be outstanding for
the purposes of calculating quorums at meetings of the Bondholders or for the purposes
of Condition
12(a).
|
|
|
(f)
|
|
Cancellation
|
|
|
|
|
All Bonds so redeemed or purchased and any unmatured Coupons attached to or surrendered
with them will be cancelled and may not be re-issued or resold.
|
|
(a)
|
|
Method of Payment
|
|
|
|
|
Payments of principal and interest will be made against presentation and surrender (or,
in the case of a partial payment, endorsement) of Bonds or the appropriate Coupons (as
the case may be) at the specified office of any Paying Agent by JPY cheque drawn on, or
by transfer to a JPY account maintained by, the payee with a bank in Japan. Payments of
interest due in respect of any Bond other than on presentation and surrender of matured
Coupons shall be made only against presentation and either surrender or endorsement (as
appropriate) of the relevant Bond.
|
|
|
(b)
|
|
Payments subject to laws
|
|
|
|
|
All payments are subject in all cases to any applicable fiscal or other laws and
regulations in the place of payment, but without prejudice to the provisions of
Condition 8. No commissions or expenses shall be charged to the Bondholders in respect
of such payments.
|
|
|
(c)
|
|
Surrender of unmatured Coupons
|
|
|
|
|
Each Bond should be presented for redemption together with all unmatured Coupons
relating to it, failing which the amount of any such missing unmatured Coupon (or, in
the case of payment not being made in full, that proportion of the amount of such
missing unmatured Coupon which the sum of principal so paid bears to the total principal
amount due) will be deducted from the sum due for payment (or, in the case of Coupons
relating to Floating Rate Bonds, shall become void and no payment shall be made in
respect of them). Each amount of principal so deducted will be paid in the manner
mentioned above against surrender of the relevant missing Coupon not later than 10 years
after the Relevant Date (as defined in Condition 10) for the relevant payment of
principal.
|
- 93 -
|
(d)
|
|
Payments on business days
|
|
|
|
|
A Bond or Coupon may only be presented for payment on a day which is a business day in
the place of presentation. No further interest or other payment will be made as a
consequence of the day on which the relevant Bond or Coupon may be presented for payment
under this paragraph falling after the due date. In this Condition
business day
means
a day on which commercial banks and foreign exchange markets are open in the relevant
city and in Tokyo.
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|
|
(e)
|
|
Paying Agents
|
|
|
|
|
The initial Paying Agents and their initial specified offices are listed below. The
Issuer reserves the right at any time with the approval of the Trustee to vary or
terminate the appointment of any Paying Agent and appoint additional or other Paying
Agents. Notice of any change in the Paying Agents or their specified offices will
promptly be given to the Bondholders.
|
8
|
|
Taxation
|
|
|
|
All payments in respect of the Bonds shall be made free and clear of, and without withholding
or deduction for, any taxes, duties, assessments or governmental charges of whatever nature
imposed, levied, collected, withheld or assessed by or within the United States of America, or
any other jurisdiction, or any political subdivision or any authority therein or thereof
having power to tax, unless such withholding or deduction is required by law. In that event
the Issuer shall pay such additional amounts as will result in receipt by the Bondholders of
such amounts as would have been received by them had no such withholding or deduction been
required, except that no such additional amounts shall be payable in respect of any Bond
presented for payment:
|
|
(a)
|
|
Other connection
|
|
|
|
|
By or on behalf of a holder who is liable to such taxes, duties, assessments or
governmental charges in respect of such Bond by reason of his having some connection
with the United States of America other than the mere holding of the Bond; or
|
|
|
(b)
|
|
Presentation more than 30 days after the Relevant Date
|
|
|
|
|
More than 30 days after the Relevant Date except to the extent that the holder of it
would have been entitled to such additional amounts on presenting such Bond for payment
on the last day of such period of 30 days.
|
9
|
|
Events of Default
|
|
|
|
If any of the following events (each an
Event of
Default
) occurs the Trustee at its
discretion may, and if so directed by an Extraordinary Resolution shall, subject, in each case
to being indemnified and/or secured to its satisfaction, give notice to the Issuer (a
Bond
Enforcement Notice
) that the Bonds are, and they shall immediately become, due and payable at
their principal amount together with accrued interest:
|
|
(a)
|
|
Non-Payment
|
|
|
|
|
The Issuer fails to pay any sum due in respect of any of the Bonds within three days of
the relevant due date; or
|
|
|
(b)
|
|
Breach of Other Obligations
|
|
|
|
|
The Issuer does not perform or comply with any one or more of its other obligations in
the Bonds, the Bond Trust Deed or any other Transaction Document which default is
incapable of remedy or, if in the opinion of the Trustee capable of remedy, is not in
the opinion of the Trustee remedied within 30 days
|
- 94 -
|
|
|
after notice of such default shall have been given to the Issuer by the Trustee. A
failure by the Issuer to comply with paragraphs (nn) to (vv) of Clause 14.1 of the Bond
Trust Deed shall, in any event, be deemed to be incapable of remedy;
|
|
(c)
|
|
Illegality
|
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|
|
|
It is or will become unlawful for the Issuer to perform or comply with any of its
obligations under or in respect of the Bonds, the Bond Trust Deed or any of the other
Transaction Documents.
|
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|
(d)
|
|
the occurrence of a Bankruptcy Event with respect to the
Issuer;
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Bankruptcy Event
means, with respect to any person, that such
person;
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(i)
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is dissolved (other than pursuant to a consolidation, amalgamation or merger);
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(ii)
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becomes insolvent or is unable to pay its debts or fails or admits in
writing its inability generally to pay its debts as they become due;
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(iii)
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makes a general assignment, arrangement or composition with or for the benefit
of its creditors;
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(iv)
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(A) institutes or has instituted against it, by a regulator,
supervisor or any similar official with primary insolvency, rehabilitative or
regulatory jurisdiction over it, a proceeding seeking a judgement of insolvency or
bankruptcy or any other relief under any bankruptcy or insolvency law or other
similar law affecting creditors rights, or a petition is presented for its
winding-up or liquidation by it or such regulator, supervisors or similar
official, or (B) has instituted against it a proceeding seeking a judgement of
insolvency or bankruptcy or any other relief under any bankruptcy or insolvency
law or other similar law affecting creditors rights, or a petition is presented
for its winding-up or liquidation, and such proceeding or petition is presented
for its winding-up or liquidation;
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(v)
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has a resolution passed for its winding-up, official management or
liquidation (other than pursuant to a consolidation, amalgamation or merger);
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(vi)
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seeks or becomes subject to the appointment of an administrator,
provisional liquidator, conservator, receiver, trustee, custodian or other similar
official for it or for all of substantially all its assets;
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(vii)
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has a secured party take possession of any of its assets it has a
distress, execution, attachment, sequestration or other legal process levied,
enforced or sued on or against all or substantially all its assets and such secured
party maintains possession, or any such process is not dismissed, discharged,
stayed or restrained, in each case within 30 days thereafter; or
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(viii)
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causes or is subject to any event with respect to it which, under the applicable
laws of any jurisdiction, has an analogous effect to any of the events specified in
clauses (i) to (vii) above (inclusive);
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(e)
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Toshiba fails to pay the Unwind Payment when due and payable by Toshiba under the
Investment Agreements; and
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(f)
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Toshiba fails to pay the Put Price when due and payable by Toshiba under the Put Option
Agreements.
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10
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Prescription
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Claims in respect of principal and interest will become void unless presentation for payment
is made as required by Condition 6 within a period of 10 years in the case of principal and
five years in the case of interest from the appropriate Relevant Date.
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- 95 -
Relevant Date
means whichever is the later of (i) the date on which such payment first
becomes due and (ii) if the full amount payable has not been received by the Principal Paying
Agent or the Trustee on or prior to such due date, the date on which, the full amount having
been so received, notice to that effect shall have been given to the Bondholders. Any reference
in these Conditions to principal and/or interest shall be deemed to include any additional
amounts which may be payable under this Condition or any undertaking given in addition to or
substitution for it under the Bond Trust Deed.
11
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Replacement of Bonds and Coupons
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If any Bond or Coupon is lost, stolen, mutilated, defaced or destroyed it may be replaced at
the specified office of a Paying Agent subject to all applicable laws and relevant authority
requirements, upon payment by the claimant of the expenses incurred in connection with such
replacement and on such terms as to evidence, security, indemnity and otherwise as the Issuer
may require (provided that the requirement is reasonable in the light of prevailing market
practice). Mutilated or defaced Bonds or Coupons must be surrendered before replacements will
be issued.
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12
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Meetings of Bondholders, Modification, Waiver and Substitution
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(a)
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Meetings of Bondholders
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The Bond Trust Deed contains provisions for convening meetings of Bondholders to
consider matters affecting their interests, including the sanctioning by Extraordinary
Resolution (as defined in the Bond Trust Deed) of a modification of any of these
Conditions or any provisions of the Bond Trust Deed or the provisions of any of the
other Transaction Documents. Such a meeting may be convened by Bondholders holding not
less than 10 per cent, in principal amount of the Bonds for the time being outstanding.
The quorum for any meeting convened to consider an Extraordinary Resolution will be one
or more persons holding or representing a clear majority in principal amount of the
Bonds for the time being outstanding, or at any adjourned meeting one or more persons
being or representing Bondholders whatever the principal amount of the Bonds held or
represented, unless the business of such meeting includes consideration of proposals,
inter alia,
(i) to modify the maturity of the Bonds or vary the method or basis of
calculating the Rate of Interest on the Floating Rate Bonds, or the dates on which
interest is payable in respect of the Bonds, (ii) to reduce or cancel the principal
amount of, any premium payable on early redemption of, or interest on, the Bonds, (iii)
to change the currency of payment of the Bonds or the Coupons, (iv) to modify the
provisions concerning the quorum required at any meeting of Bondholders or the majority
required to pass an Extraordinary Resolution, (v) to alter the order or payment provided
for in the Priority of Payments, (vi) to alter, modify or release any Security, (vii) to
alter or modify or release Toshiba from its obligations under the Put Option Agreements
or (viii) exercise of the Put Rights as outlined in Condition 4(a)(xx), in which case
the necessary quorum will be one or more persons holding or representing not less than
75 per cent, or at any adjourned meeting not less than 25 per cent, in principal amount
of the Bonds for the time being outstanding. Any Extraordinary Resolution duly passed
shall be binding on Bondholders (whether or not they were present at the meeting at
which such resolution was passed) and on all Couponholders. A Written Resolution of the
Bondholders holding at least 75 per cent, in aggregate of the Principal Amount
Outstanding under the Bonds, shall be deemed to have the same effect as an Extraordinary
Resolution.
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Bonds held, legally or beneficially, by or on behalf of Toshiba or any of its affiliates
(or in respect of which the relevant Bondholder or any other person has made a
declaration of trust in respect of, entered into a sub-participation arrangement with or
entered into any other arrangement having substantially the same economic effect (or
granting voting control over the relevant Bonds to) Toshiba or any of its affiliates)
shall not entitle the holder to vote at any meetings of the Bondholders and shall
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- 96 -
not be deemed to be outstanding for the purposes of calculating quorums at meetings
of the Bondholders or for the purposes of this paragraph (a).
For the purposes of this paragraph (a)
affiliate
shall means with respect to any
person, any other person directly or indirectly Controlling, Controlled by, or under
common Control with, such person and
Control
(including the terms
Controlling,
Controlled by
and
under common Control
with
) means the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such person, whether through the ownership
of a majority of the voting securities, by contract or otherwise.
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(b)
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Modification and Waiver
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The Trustee may agree, without the consent of the Bondholders or Couponholders, to (i)
any modification of any of the provisions of the Bond Trust Deed or the provisions of
any of the other Transaction Documents which (in its opinion) is of a formal, minor or
technical nature or is made to correct a manifest error, and (ii) any other modification
(except as mentioned in the Bond Trust Deed), and any waiver or authorisation of any
breach or proposed breach, of any of the provisions of the Bond Trust Deed or the
provisions of any of the other Transaction Documents which is, in the opinion of the
Trustee, not materially prejudicial to the interests of the Bondholders. Any such
modification, authorisation or waiver shall be binding on the Bondholders and the
Couponholders and, if the Trustee so requires, such modification shall be notified to
the Bondholders as soon as practicable.
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(c)
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Substitution
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The Bond Trust Deed contains provisions permitting the Trustee to agree, subject to such
amendment of the Bond Trust Deed and such other conditions as the Trustee may require,
without the consent of the Bondholders or the Couponholders, to the substitution of any
other company in place of the Issuer, or of any previous substituted company, as
principal debtor under the Bond Trust Deed and the Bonds and chargor and pledger under
the Security Documents and party to the other Transaction Documents, provided that such
substitution shall not at the time of substitution result in a downgrading of any rating
assigned to the Bonds. In the case of such a substitution the Trustee may agree, without
the consent of the Bondholders or the Couponholders, to a change of the law governing
the Bonds, the Coupons, the Bond Trust Deed and/or any other Transaction Documents,
provided that such change would not in the opinion of the Trustee be materially
prejudicial to the interests of the Bondholders and shall not at the time of such change
result in a downgrading of any rating assigned to the Bonds. Under the Bond Trust Deed,
the Trustee may agree or require the Issuer to use all reasonable endeavours to procure
the substitution as principal debtor under the Bond Trust Deed and the Bonds and chargor
and pledger under the Security Documents and party to the other Transaction Documents of
a company incorporated in some other jurisdiction in the event of the Issuer becoming
subject to any form of tax on its income or payments in respect of the Bonds, and
provided that such substitution shall not at the time of substitution result in a
downgrading of any rating assigned to the Bonds.
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(d)
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Entitlement of the Trustee
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In connection with the exercise of its functions (including but not limited to those
referred to in this Condition) the Trustee shall have regard to the interests of the
Bondholders as a class and shall not have regard to the consequences of such exercise
for individual Bondholders or Couponholders and the Trustee shall not be entitled to
require, nor shall any Bondholder or Couponholder be entitled to claim, from the Issuer
any indemnification or payment in respect of any tax consequence of any such exercise
upon individual Bondholders or Couponholders.
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- 97 -
The Trustee may, at any time, at its discretion and without notice, may take such
proceedings against the Issuer or any other party to any of the Transaction Documents as it may
think fit to enforce the provisions of the Bonds, the Bond Trust Deed (including these
Conditions), the Deed of Charge and any of the other Transaction Documents to which it is a
party and may, at any time after the Security has become enforceable, without notice, sell,
call in, collect and convert into money the Security or any part thereof in such manner as the
Trustee may think fit, but shall not be bound to take any such proceedings or steps unless:
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(i)
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it shall have been so directed by an Extraordinary Resolution of the
Bondholders; and
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(ii)
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in all cases, it shall have been indemnified and/or
secured to its satisfaction.
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Only the Trustee may pursue the remedies available under the Bond Trust Deed to enforce the
rights of the Bondholders and the other Secured Creditors and none of the Bondholders,
Couponholders or the other Secured Creditors are entitled to proceed against the Issuer unless
the Trustee, having become bound to proceed in accordance with the terms of the Bond Trust
Deed, fails or neglects to do so.
The Trustee, the Bondholders, the Couponholders, and, the other Secured Creditors shall have
recourse only to the Security in respect of the Bonds and the Trustee, having enforced and
realised the same if the net proceeds of the Security after it has been enforced and applied
in accordance with the order of priorities set out in Condition 3, are not sufficient, after
payment of all other claims ranking in priority to the Bonds, to cover all payments due in
respect of the Bonds, none of the Trustee, the Bondholders, the Couponholders or the other
Secured Creditors or anyone acting on behalf of any of them shall be entitled to take any
further steps against the Issuer to recover any further sum and no debt shall be owed by the
Issuer in respect of such sum.
None of the Trustee, any Bondholder, any Couponholder and the other Secured Creditors, nor any
other party to any Security Document shall be entitled to institute, or join with any other
person in bringing, instituting or joining, insolvency proceedings (whether court based or
otherwise) in relation to the Issuer and none of them shall have any claim in respect of any
sum arising in respect of any assets secured for the benefit of any other obligations of the
Issuer.
Amounts available for distribution after enforcement of the Security shall be distributed in
accordance with the terms of the Deed of Charge.
14
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Indemnification of the Trustee
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The Bond Trust Deed and the Deed of Charge contain provisions governing the
responsibility (and relief from responsibility) of the Trustee and for its indemnification in
certain circumstances, including provisions relieving it from taking enforcement proceedings
unless indemnified and/or secured to its satisfaction and for its relief from responsibility
for the validity, sufficiency and enforceability (which the Trustee has not investigated) of
the Security created over the charged property. The Bond Trust Deed and the Deed of Charge
also relieve the Trustee of liability for, among other things, not having made or not having
caused to be made on its behalf the searches, registrations, investigations and enquiries
which a prudent chargee would normally have been likely to make in entering into the Deed of
Charge.
To the extent that the Trustee is instructed to take any action pursuant to an Extraordinary
Resolution of Bondholders, and any such action requires the determination of whether an event
or occurrence has had a Material Adverse Effect, the Trustee shall have no duty to enquire or
satisfy itself as to the existence of an event or occurrence having a Material Adverse Effect,
shall be entitled to rely conclusively upon such Extraordinary Resolution of the Bondholders
regarding the same and shall bear no liability of any nature whatsoever to any person for
acting upon such Extraordinary Resolution of the Bondholders.
- 98 -
The Trustee and any affiliate are entitled to enter into business transactions with the Issuer
and each other party to the Transaction Documents or any of their subsidiaries, holding or
associated companies without accounting to the Bondholders for profit resulting therefrom.
The Trustee will not be obliged to supervise the performance by the Issuer, the Servicer,
Toshiba or any other person of their obligations under the Transaction Documents and the
Trustee will assume, until it has actual knowledge to the contrary, that all such persons are
properly performing their duties.
Notices to Bondholders will be valid if published in a leading newspaper having general
circulation in Tokyo. Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once on the first date on which publication is made.
Couponholders will be deemed for all purposes to have notice of the contents of any notice
given to the Bondholders in accordance with this Condition.
16
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Contracts (Rights of Third Parties) Act 1999
|
No person shall have any right to enforce any term or condition of the Bonds under the
Contracts (Rights of Third Parties) Act 1999 except and to the extent (if any) that the
Bonds expressly provide for such Act to apply to any of their terms.
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(a)
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Governing Law
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The Bond Trust Deed, the Bonds and the Coupons are governed by and shall be construed in
accordance with English law.
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(b)
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Jurisdiction
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The courts of England are to have jurisdiction to settle any disputes which may arise
out of or in connection with the Bonds or the Coupons and accordingly any legal action
or proceedings arising out of or in connection with the Bond Trust Deed, the Bonds or
the Coupons
(Proceedings)
may be brought in such courts. The Issuer has in the Bond
Trust Deed irrevocably submitted to the jurisdiction of such courts.
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(c)
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Agent for Service of Process
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The Issuer has irrevocably appointed Law Debenture Corporate Services Limited as its
agent in England to receive service of process in any Proceedings in England based on
any of the Bond Trust Deed, the Bonds or the Coupons.
|
- 99 -
On the back:
PRINCIPAL PAYING AGENT
The Bank of New York
One Canada Square
London
E14 5AL
- 100 -
Schedule 5
Provisions for Meetings of Bondholders
DEFINITIONS
1
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As used in this Schedule the following expressions shall have the following meanings
unless the context otherwise requires:
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Block Voting Instruction
means an English language document issued by the Principal
Paying Agent in which:
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(a)
|
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it is certified that on the date thereof Bonds (not being Bonds in respect of
which a Voting Certificate has been issued and is outstanding in respect of the meeting
specified in such Block Voting Instruction) are blocked in an account with a Clearing
System and that no such Bonds will cease to be so blocked until the first to occur of:
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(1)
|
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the conclusion of the meeting specified in such Block Voting
Instruction; and
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(2)
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the Bonds ceasing with the agreement of the Principal Paying
Agent to be so blocked and the giving of notice by the Principal Paying Agent
to the Issuer in accordance with paragraph 3(e) of the necessary amendment to
the Block Voting Instruction;
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(b)
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it is certified that each holder of such Bonds has instructed the Principal
Paying Agent that the vote(s) attributable to the Bonds so blocked should be cast in a
particular way in relation to the resolution(s) to be put to such meeting and that all
such instructions are, during the period commencing 48 Hours prior to the time for
which such meeting is convened and ending at the conclusion or adjournment thereof,
neither revocable nor capable of amendment;
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(c)
|
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the aggregate principal amount of the Bonds so blocked is listed distinguishing
with regard to each such resolution between those in respect of which instructions have
been given that the votes attributable thereto should be cast in favour of the
resolution and those in respect of which instructions have been so given that the votes
attributable thereto should be cast against the resolution; and
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(d)
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one or more persons named in such Block Voting Instruction (each hereinafter
called a
proxy
) is or are authorised and instructed by the Principal Paying Agent to
cast the votes attributable to the Bonds so listed in accordance with the instructions
referred to in (c) above as set out in such Block Voting Instruction;
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Clearing System
means Euroclear and/or Clearstream, Luxembourg and includes in respect of
any Bond any clearing system on behalf of which such Bond is held or which is the bearer,
holder or (directly or through a nominee) registered owner of a Bond, in either case whether
alone or jointly with any other Clearing System(s).
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Eligible Person
means any one of the following persons who shall be entitled to attend
and vote at a meeting:
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(a) a bearer of any Voting Certificate;
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(b) a proxy specified in any Block Voting Instruction;
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Extraordinary Resolution
means:
- 101 -
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(a)
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a resolution passed at a meeting duly convened and held in accordance with
these presents by a majority consisting of not less than 75 per cent, of the
Eligible Persons voting thereat upon a show of hands or, if a poll is duly demanded,
by a majority consisting of not less than 75 per cent, of the votes cast on such
poll; or
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(b)
|
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a resolution in writing signed by or on behalf of the Bondholders of not less
than 75 per cent, in aggregate Principal Amount Outstanding of Bonds which resolution
may be contained in one document or in several documents in like form each signed by
or on behalf of one or more of the Bondholders (a
Written Resolution
);
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Ordinary Resolution,
means:
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(a)
|
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a resolution passed at a meeting duly convened and held in accordance with these
presents by a clear majority of the Eligible Persons voting thereat on a show of hands
or, if a poll is duly demanded, by a simple majority of the votes cast on such poll; or
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(b)
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a resolution in writing signed by or on behalf of the Bondholders of not less
than a clear majority in aggregate Principal Amount Outstanding of Bonds, which
resolution may be contained in one document or in several documents in like form each
signed by or on behalf of one or more of the Bondholders;
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Voting Certificate
means an English language certificate issued by a Paying Agent in
which it is stated:
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(a)
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that on the date thereof Bonds (not being Bonds in respect of which a Block
Voting Instruction has been issued and is outstanding in respect of the meeting
specified in such Voting Certificate) are blocked in an account with a Clearing System
and that no such Bonds will cease to be so blocked until the first to occur of:
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(i)
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the conclusion of the meeting specified in such Voting Certificate; and
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(ii)
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the surrender of the Voting Certificate to the Paying
Agent who issued the same; and
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(b)
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that the bearer thereof is entitled to attend and vote at such meeting in
respect of the Bonds represented by such Voting Certificate;
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24 Hours
means a period of 24 hours including all or part of a day upon which banks are
open for business in both the place where the relevant meeting is to be held and in each of
the places where the Paying Agents have their specified offices (disregarding for this
purpose the day upon which such meeting is to be held) and such period shall be extended by
one period or, to the extent necessary, more periods of 24 hours until there is included as
aforesaid all or part of a day upon which banks are open for business in all of the places
as aforesaid; and
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48 Hours
means a period of 48 hours including all or part of two days upon which banks
are open for business both in the place where the relevant meeting is to be held and in
each of the places where the Paying Agents have their specified offices (disregarding for
this purpose the day upon which such meeting is to be held) and such period shall be
extended by one period or, to the extent necessary, more periods of 48 hours until there is
included as aforesaid all or part of two days upon which banks are open for business in all
of the places as aforesaid.
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- 102 -
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For the purposes of calculating a period of Clear Days in relation to a meeting, no
account shall be taken of the day on which the notice of such meeting is given (or, in the
case of an adjourned meeting, the day on which the meeting to be adjourned is held) or the
day on which such meeting is held.
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All references in this Schedule to a meeting shall, where the context so permits, include
any relevant adjourned meeting.
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EVIDENCE OF ENTITLEMENT TO ATTEND AND VOTE
2
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A holder of a Bond may require the issue by the Principal Paying Agent of Voting
Certificates and Block Voting Instructions in accordance with the terms of paragraph 3.
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For the purposes of paragraph 3, the Principal Paying Agent shall be entitled to rely,
without further enquiry, on any information or instructions received from a Clearing System
and shall have no liability to any Bondholder or other person for any loss, damage, cost,
claim or other liability occasioned by its acting in reliance thereon, nor for any failure
by a Clearing System to deliver information or instructions to the Principal Paying Agent.
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The holder of any Voting Certificate or the proxies named in any Block Voting Instruction
shall for all purposes in connection with the relevant meeting be deemed to be the holder
of the Bonds to which such Voting Certificate or Block Voting Instruction relates and the
Clearing System in which such Bonds have been blocked shall be deemed for such purposes not
to be the holder of those Bonds.
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PROCEDURE FOR ISSUE OF VOTING CERTIFICATES, BLOCK VOTING INSTRUCTIONS
3
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(a)
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Voting Certificate
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A holder of a Bond (not being a Bond in respect of which instructions have
been given to the Principal Paying Agent in accordance with paragraph 3(b)) may
procure the delivery of a Voting Certificate in respect of such Bond by giving
notice to the Clearing System through which such holders interest in the Bond is
held specifying by name a person (an
Identified Person)
(which need not be the
holder himself) to collect the Voting Certificate and attend and vote at the
meeting. The relevant Voting Certificate will be made available at or shortly prior
to the commencement of the meeting by the Principal Paying Agent against
presentation by such Identified Person of the form of identification previously
notified by such holder to the Clearing System. The Clearing System may prescribe
forms of identification (including, without limitation, a passport or driving
licence) which it deems appropriate for these purposes. Subject to receipt by the
Principal Paying Agent from the Clearing System, no later than 24 Hours prior to the
time for which such meeting is convened, of notification of the aggregate Principal
Amount Outstanding of the Bonds to be represented by any such Voting Certificate and
the form of identification against presentation of which such Voting Certificate
should be released, the Principal Paying Agent shall, without any obligation to make
further enquiry, make available a Voting Certificate against presentation of the
form of identification corresponding to that notified.
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(b)
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Block Voting Instruction
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A holder of a Bond (not being a Bond in respect of which a Voting
Certificate has been issued) may require the Principal Paying Agent to issue a
Block Voting
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- 103 -
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Instruction in respect of such Bond by first instructing the Clearing System
through which such holders interest in the Bond is held to procure that the votes
attributable to such Bond should be cast at the meeting in a particular way in
relation to the resolution or resolutions to be put to the meeting. Any such
instruction shall be given in accordance with the rules of the Clearing System then
in effect. Subject to receipt by the Principal Paying Agent of instructions from
the Clearing System, no later than 24 Hours prior to the time for which such
meeting is convened, of notification of the principal amount of the Bonds in
respect of which instructions have been given and the manner in which the votes
attributable to such Bonds should be cast, the Principal Paying Agent shall,
without any obligation to make further enquiry, appoint a proxy to attend the
meeting and cast votes in accordance with such instructions.
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(c)
|
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Each Block Voting Instruction, together (if so requested by the Trustee) with
proof satisfactory to the Trustee of its due execution on behalf of the Principal
Paying Agent, and each form of proxy shall be deposited by the Principal Paying Agent
at such place as the Trustee shall approve not less than 24 Hours before the time
appointed for holding the meeting at which the proxy or proxies named in the Block
Voting Instruction or form of proxy proposes to vote and, in default, the Block Voting
Instruction or form of proxy shall not be treated as valid unless the Chairman of the
meeting decides otherwise before such meeting proceeds to business. A copy of each
Block Voting Instruction and form of proxy shall be deposited with the Trustee before
the commencement of the meeting but the Trustee shall not thereby be obliged to
investigate or be concerned with the validity of or the authority of the proxy or
proxies named in any such Block Voting Instruction or form of proxy.
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(d)
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Any vote given in accordance with the terms of a Block Voting Instruction or
form of proxy shall be valid notwithstanding the previous revocation or amendment of
the Block Voting Instruction or form of proxy or of any of the instructions of the
relevant holder or the relevant Clearing System (as the case may be) pursuant to which
it was executed provided that no intimation in writing of such revocation or
amendment has been received from the Principal Paying Agent (in the case of a Block
Voting Instruction) or from the holder thereof (in the case of a proxy appointed
pursuant to paragraph 3(b)) by the Issuer at its registered office (or such other place
as may have been required or approved by the Trustee for the purpose) by the time being
24 Hours (in the case of a Block Voting Instruction) or 48 Hours (in the case of a
proxy) before the time appointed for holding the meeting at which the Block Voting
Instruction or form of proxy is to be used.
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CONVENING OF MEETINGS, QUORUM AND ADJOURNED MEETINGS
4
|
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The Issuer or the Trustee may at any time, and the Issuer shall upon a requisition in
writing in the English language signed by the Bondholders of not less
than ten per cent. in
Principal Amount Outstanding of the Bonds for the time being outstanding, convene a meeting
and if the Issuer makes default for a period of seven days in convening such a meeting the
same may be convened by the Trustee or the requisitionists. Whenever the Issuer is about to
convene any such meeting the Issuer shall forthwith give notice in writing to the Trustee of
the day, time and place thereof and of the nature of the business to be transacted thereat.
Every such meeting shall be held at such time and place as the Trustee may appoint or approve
in writing.
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- 104 -
5
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At least 21 Clear Days notice specifying the place, day and hour of meeting shall
be given to the Bondholders prior to any meeting in the manner provided by the Conditions.
Such notice, which shall be in the English language, shall state generally the nature of the
business to be transacted at the meeting thereby convened and, in the case of an
Extraordinary Resolution, shall specify in such notice the terms of such resolution. Such
notice shall include statements as to the manner in which Bondholders may arrange for Voting
Certificates or Block Voting Instructions to be issued and, if applicable, appoint proxies.
A copy of the notice shall be sent by post to the Trustee (unless the meeting is convened by
the Trustee) and to the Issuer (unless the meeting is convened by the Issuer).
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6
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A person (who may but need not be a Bondholder) nominated in writing by the Trustee shall be
entitled to take the chair at the relevant meeting, but if no such nomination is made or if at
any meeting the person nominated shall not be present within 15 minutes after the time
appointed for holding the meeting the Bondholders present shall choose one of their number to
be Chairman, failing which the Issuer may appoint a Chairman. The Chairman of an adjourned
meeting need not be the same person as was Chairman of the meeting from which the adjournment
took place.
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7
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At any such meeting, one or more Eligible Persons present and representing in the aggregate
not less than 5 per cent. of the Principal Amount Outstanding of the Bonds for the time being
outstanding shall (except for the purpose of passing an Extraordinary Resolution) form a
quorum for the transaction of business (including the passing of an Ordinary Resolution) and
no business (other than the choosing of a Chairman) shall be transacted at any meeting unless
the requisite quorum be present at the commencement of the relevant business. The quorum at
any such meeting for passing an Extraordinary Resolution shall (subject as provided below) be
one or more Eligible Persons present and representing in the
aggregate more than 50 per cent.
in Principal Amount Outstanding of the Bonds for the time being outstanding PROVIDED THAT at
any meeting the business of which includes any of the following matters (each a
Basic Terms
Modification
and each of which shall, subject only to paragraphs 19 and 22, only be capable
of being effected after having been approved by Extraordinary Resolution) namely:
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(i)
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to modify the maturity of the Bonds or vary the method or basis of
calculating the Rate of Interest on the Floating Rate Bonds, or the dates on which
interest is payable in respect of the Bonds;
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(ii)
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to reduce or cancel the principal amount of, any premium payable on early
redemption of, or interest on, the Bonds;
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(iii)
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to change the currency of payment of the Bonds or the Coupons;
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(iv)
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to modify the provisions concerning the quorum required at any meeting of
Bondholders or the majority required to pass an Extraordinary Resolution;
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(v)
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to alter the order or payment provided for in the Priority of Payments;
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(vi)
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to alter, modify or release any Security;
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(vii)
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to alter or modify or release Toshiba from its obligations under the Put
Option Agreements;
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(viii)
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exercise of the Put Rights as outlined in Condition 4(a)(xx);
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(ix)
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sanctioning of any such scheme or proposal or substitution as is described
in paragraphs 19(i) and (j); and
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- 105 -
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(x)
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alteration of this proviso or the proviso to paragraph 9;
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the quorum shall be one or more Eligible Persons present and representing in the aggregate
not less than 75 per cent. of the Principal Amount Outstanding of the Bonds for the time
being outstanding.
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8
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If within 15 minutes (or such longer period not exceeding 30 minutes as the Chairman may
decide) after the time appointed for any such meeting a quorum is not present for the
transaction of any particular business, then, subject and without prejudice to the
transaction of the business (if any) for which a quorum is present, the meeting shall, if
convened upon the requisition of Bondholders, be dissolved. In any other case it shall stand
adjourned to the same day in the next week (or if such day is a public holiday the next
succeeding business day) at the same time and place (except in the case of a meeting at which
an Extraordinary Resolution is to be proposed in which case it shall stand adjourned for such
period, being not less than 13 Clear Days nor more than 42 Clear Days, and to such place as
may be appointed by the Chairman either at or subsequent to such meeting and approved by the
Trustee). If within 15 minutes (or such longer period not exceeding 30 minutes as the Chairman
may decide) after the time appointed for any adjourned meeting a quorum is not present for the
transaction of any particular business, then, subject and without prejudice to the transaction
of the business (if any) for which a quorum is present, the Chairman may either (with the
approval of the Trustee) dissolve such meeting or adjourn the same for such period, being not
less than 13 Clear Days (but without any maximum number of Clear Days), and to such place as
may be appointed by the Chairman either at or subsequent to such adjourned meeting and
approved by the Trustee, and the provisions of this sentence shall apply to all further
adjourned such meetings.
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9
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At any adjourned meeting, one or more Eligible Persons present (whatever the Principal Amount
Outstanding of the Bonds so held or represented by them) shall (subject as provided below)
form a quorum and shall have power to pass any resolution and to decide upon all matters which
could properly have been dealt with at the meeting from which the adjournment took place had
the requisite quorum been present provided that at any adjourned meeting the quorum for the
transaction of business comprising any of the matters specified in the proviso to paragraph 7
shall be one or more Eligible Persons present and holding or representing in the aggregate not
less than 25 per cent. of the Principal Amount Outstanding of the Bonds for the time being
outstanding.
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10
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Notice of any adjourned meeting at which an Extraordinary Resolution is to be submitted shall
be given in the same manner as notice of an original meeting but as if 10 were substituted for
21 in paragraph 5 and such notice shall state the required quorum. Subject as aforesaid it
shall not be necessary to give any notice of an adjourned meeting.
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CONDUCT OF BUSINESS AT MEETINGS
11
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Every question submitted to a meeting shall be decided in the first instance by a show of
hands. A poll may be demanded (before or on the declaration of the result of the show of
hands) by the Chairman, the Issuer, the Trustee or any Eligible Person (whatever the Principal
Amount Outstanding of the Bonds so represented by him).
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12
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At any meeting, unless a poll is duly demanded, a declaration by the Chairman that a
resolution has been carried or carried by a particular majority or lost or not carried by a
particular majority shall be conclusive evidence of the fact without proof of the number or
proportion of the votes recorded in favour of or against such resolution.
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- 106 -
13
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Subject to paragraph 15, if at any such meeting a poll is so demanded it shall be
taken in such manner and, subject as hereinafter provided, either at once or after an
adjournment as the Chairman directs and the result of such poll shall be deemed to be the
resolution of the meeting at which the poll was demanded as at the date of the taking of the
poll. The demand for a poll shall not prevent the continuance of the meeting for the
transaction of any business other than the motion on which the poll has been demanded.
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14
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The Chairman may, with the consent of (and shall if directed by) any such meeting, adjourn
the same from time to time and from place to place; but no business shall be transacted at any
adjourned meeting except business which might lawfully have been transacted at the meeting
from which the adjournment took place.
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15
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Any poll demanded at any such meeting on the election of a Chairman or on any question of
adjournment shall be taken at the meeting without adjournment.
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16
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Any director or officer of the Trustee, its lawyers and financial advisers, any director or
officer of the Issuer, its lawyers and financial advisers, any director or officer of any of
the Paying Agents and any other person authorised so to do by the Trustee may attend and speak
at any meeting. Save as aforesaid, no person shall be entitled to attend and speak nor shall
any person be entitled to vote at any meeting unless he is an Eligible Person. No person shall
be entitled to vote at any meeting in respect of Bonds which are deemed to be not outstanding
by virtue of the proviso to the definition of outstanding in Clause 1.
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17
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At any meeting:
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(a)
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on a show of hands every Eligible Person present shall have one vote; and
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(b)
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on a poll every Eligible Person present shall have one vote in respect of each
JPY10,000,000 (or such other amount as the Trustee may in its absolute discretion
stipulate) in Principal Amount Outstanding of the Bonds represented by such Eligible
Person.
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Without prejudice to the obligations of the proxies named in any Block Voting Instruction
or form of proxy, any Eligible Person entitled to more than one vote need not use all his
votes or cast all the votes to which he is entitled in the same way.
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18
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The proxies named in any Block Voting Instruction or form of proxy need not be Bondholders.
Nothing herein shall prevent any of the proxies named in any Block Voting Instruction or form
of proxy from being a director, officer or representative of or otherwise connected with the
Issuer.
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19
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A meeting shall in addition to the powers hereinbefore given have the following powers
exercisable only by Extraordinary Resolution (subject to the provisions relating to quorum
contained in paragraphs 7 and 9) namely:
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(a)
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power to sanction any compromise or arrangement proposed to be made between the
Issuer, any other party to any Transaction Document, the Trustee and the Bondholders or
any of them;
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(b)
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power to sanction any abrogation, modification, compromise or arrangement in
respect of the rights of the Trustee, the Bondholders, the Issuer or any other party to
any Transaction Document against any other or others of them or against any of their
property whether such rights arise under these presents, any other
Transaction Document or otherwise;
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- 107 -
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(c)
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power to assent to any modification of the provisions of these presents
or any other Transaction Document which is proposed by the Issuer, the Trustee, or
any other party to any Transaction Document or any Bondholder;
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(d)
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power to give any authority or sanction which under the provisions of these
presents or any other Transaction Document is required to be given by
Extraordinary Resolution;
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(e)
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power to appoint any persons (whether Bondholders or not) as a committee or
committees to represent the interests of the Bondholders and to confer upon such
committee or committees any powers or discretions which the Bondholders could
themselves exercise by Extraordinary Resolution;
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(f)
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power to approve of a person to be appointed a trustee and power to remove any
trustee or trustees for the time being of these presents subject to and in
accordance with Clauses 23 and 24 respectively;
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(g)
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power to discharge or exonerate the Trustee from all liability in respect of
any act or omission for which the Trustee may have become or may become responsible
under these presents;
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(h)
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power to authorise the Trustee to concur in and execute and do all such deeds,
instruments, acts and things as may be necessary to carry out and give effect to any
Extraordinary Resolution;
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(i)
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power to sanction any scheme or proposal for the exchange or sale of the Bonds
for or the conversion of the Bonds into or the cancellation of the Bonds in
consideration of shares, stock, Bonds, bonds, debentures, debenture stock and/or other
obligations and/or securities of the Issuer or any other company formed or to be
formed, or for or into or in consideration of cash, or partly for or into or in
consideration of such shares, stock, Bonds, bonds, debentures, debenture stock and/or
other obligations and/or securities as aforesaid and partly for or into or in
consideration of cash; and
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(j)
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power to approve the substitution of any entity for the Issuer (or any
previous substitute) as principal debtor under these presents,
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20
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Subject to the provisions of paragraph 22, any resolution passed at a meeting of the
Bondholders duly convened and held in accordance with these presents shall be binding upon all
the Bondholders whether or not present or whether or not represented at such meeting and
whether or not voting and each of them shall be bound to give effect thereto accordingly and
the passing of any such resolution shall be conclusive evidence that the circumstances justify
the passing thereof. Notice of the result of the voting on any resolution duly considered by
the Bondholders shall be published in accordance with the Conditions by the Issuer within 14
days of such result being known, provided that the non-publication of such notice shall not
invalidate such result.
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21
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Minutes of all resolutions and proceedings at every meeting shall be made and entered in
books from time to time to be provided for that purpose by the Issuer and any such minutes as
aforesaid, if purporting to be signed by the Chairman of the meeting at which such resolutions
were passed or proceedings transacted, shall be conclusive evidence of the matters therein
contained and, until the contrary is proved, every such meeting in respect of the proceedings
of which minutes have been made shall be deemed to have
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- 108 -
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been duly held and convened and all resolutions passed or proceedings transacted
thereat to have been duly passed or transacted.
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22
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Subject to all other provisions of these presents the Trustee may (after consultation with
the Issuer where the Trustee considers such consultation to be practicable but without the
consent of the Issuer or the Bondholders) prescribe such further or alternative regulations
regarding the requisitioning and/or the holding of meetings and attendance and voting thereat
as the Trustee may in its sole discretion reasonably think fit (including, without limitation,
the substitution for periods of 24 Hours and 48 Hours referred to in this Schedule of shorter
periods). Such regulations may, without prejudice to the generality of the foregoing, reflect
the practices and facilities of any relevant Clearing System. Notice of any such further or
alternative regulations may, at the sole discretion of the Trustee, be given to Bondholders in
accordance with the Conditions at the time of service of any notice convening a meeting or at
such other time as the Trustee may decide.
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- 109 -
Schedule 6
Notices
1
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Communications in writing
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Each communication to be made pursuant to a Transaction Document shall (except as
expressly permitted otherwise in the relevant Transaction Document) be made in writing but,
unless otherwise stated, may be made by facsimile or letter.
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2
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Time of receipt
|
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Any communication or document to be made or delivered by one person to another
pursuant to a Transaction Document shall (unless that other person has by 15 Business Days
written notice to the other specified another address) be made or delivered to that other
person at the address in the Notice Details and shall be deemed to have been made or
delivered (in the case of any communication made by facsimile) when received or (in the case
of any communication made by letter) when left at that address (with receipt
confirmed)(unless otherwise provided in the relevant Transaction Document). Any
communication sent by facsimile shall be promptly confirmed by letter but the non-delivery
or non-receipt of any such letter shall not affect the validity of the original facsimile
communication.
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3
|
|
Addresses
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The addresses referred to in paragraph 2 above are:
|
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(a)
|
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in the case of the Issuer:
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Attention:
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Vice President and Secretary
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Address:
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4171 Essen Lane
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Baton Rouge, Louisiana 70809
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Fax:
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+ 1-225-925-9146
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(b)
|
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in the case of the Trustee:
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Attention:
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Peter Malcom/Peter Howard
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Address:
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The Bank of New York
Corporate Trust Services
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One Canada Square
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London
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E14 5AL
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Fax:
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020 7964 6399
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- 110 -
|
(c)
|
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in the case of the Manager:
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Attention:
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Global Capital Markets Head of Transaction Management Group
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Address:
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25 Cabot Square
Canary Wharf
London E 14 4QA
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Tel:
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+44 20 7677 7799
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Fax No:
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+44 20 7677 7999
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(d)
|
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in the case of the Account Bank:
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Attention:
|
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Peter Malcom/Peter Howard
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Address:
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The Bank of New York
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Corporate Trust Services
One Canada Square
London
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E14 5AL
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Fax:
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020 7964 6399
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(e)
|
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in the case of the Cash Manager:
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Attention:
|
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Peter Malcom/Peter Howard
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Address:
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The Bank of New York
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Corporate Trust Services
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One Canada Square London
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E14 5AL
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Fax:
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020 7964 6399
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- 111 -
|
(f)
|
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in the case of the Principal Paying Agent:
|
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Attention:
|
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Peter Malcom/Peter Howard
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Address:
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The Bank of New York
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Corporate Trust Services
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One Canada Square
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London
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E14 5AL
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Fax:
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020 7964 6399
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- 112 -
In witness
whereof this Bond Trust Deed has been executed as a deed by the Issuer and the
Trustee and delivered on the date first stated on page one.
Signatories
|
EXECUTED as a deed by
NUCLEAR ENERGY HOLDINGS, L.L.C.
acting by
|
ü
ý
þ
|
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officer
|
EXECUTED as a deed by
THE BANK OF NEW YORK
|
ü
ý
þ
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- 113 -
EXHIBIT
10.7
PARENT PLEDGE AGREEMENT
dated October 13, 2006,
between
The Shaw Group Inc.
as Pledgor
and
The Bank of New York
as Trustee
This PARENT PLEDGE AGREEMENT
, dated October 13, 2006 (this
Agreement
), is entered into
between The Shaw Group Inc., a Louisiana corporation (the
Pledgor
), and The Bank of New York, as
security agent for the Secured Creditors (as defined below) (herein in such capacity, the
Trustee
).
RECITALS
A.
Nuclear Energy Holdings, L.L.C. , a limited liability company organized under the laws of
the State of Delaware (the
Issuer
), and the Trustee, have entered into a Bond Trust Deed dated
October 13, 2006 (the
Bond Trust Deed
), pursuant to which the Issuer is issuing JPY
50,980,000,000 aggregate principal amount of 2.20% Fixed Rate Bonds due 2013 and JPY 78,000,000,000
aggregate principal amount of Floating Rate Bonds due 2013 (together, the
Bonds
).
B.
The Pledgor is the sole member of the Issuer and has agreed to pledge its membership interest in
the Issuer as additional security for the Secured Obligations.
C.
As a condition precedent to issuance of the Bonds under the Bond Trust Deed, the Pledgor is
required to execute and deliver this Agreement.
In consideration of the premises and for other valuable consideration, the receipt and sufficiency
of which the parties hereto hereby acknowledge, the Pledgor and the Trustee, on behalf of itself
and each Secured Creditor (and each of their respective successors or permitted assigns), hereby
agree as follows:
SECTION
1
DEFINITIONS; RULES OF INTERPRETATION
Section 1.1 Definition of Terms Used Herein
Unless the context otherwise requires, all capitalized terms used but not defined herein shall
have the meanings set forth in the Deed of Charge (as defined below).
Section 1.2 UCC
Terms used herein that are defined in the UCC but not defined herein have the meanings given
to them in the UCC.
Section 1.3 General Definitions
In this Agreement:
Agreement
has the meaning set forth in the preamble hereto.
Bankruptcy Code
means the United States Bankruptcy Code, 11 U.S.C. §§ 101 et. seq.
Bond Trust Deed
has the meaning set forth in the recitals hereof.
Cash Collateral Account
means any Deposit Account or Securities Account established by the
Trustee in which cash and Cash Equivalents may from time to time be on deposit or held therein as
provided herein.
Collateral
means the property of the Pledgor described in Section 2.1 in which Security Interests
are granted to the Trustee for the benefit of the Secured Creditors.
Collateral Records
means books, records, ledger cards, files, correspondence, customer lists,
blueprints, technical specifications, manuals, computer software, computer printouts, tapes, disks
and
- 2 -
related data processing software and similar items that at any time evidence or contain information
relating to any of the Collateral or are otherwise necessary or helpful in the collection thereof
or realization thereon.
Deed of Charge
means the deed of charge dated on or about the date hereof among the Trustee, the
Issuer, the Account Bank, the Cash Manager and the Principal Paying Agent.
Dividends
means, in relation to Pledged LLC Interest, all present and future: (a) dividends and
distributions of any kind and any other sum received or receivable in respect of that Pledged LLC
Interest, (b) rights, shares, money or other assets accruing or offered by way of redemption,
substitution, exchange, bonus, option, preference or otherwise in respect of that Pledged LLC
Interest, (c) allotments, offers and rights accruing or offered in respect of that Pledged LLC
Interest and (d) other rights and assets attaching to, deriving from or exercisable by virtue of
the ownership of, that Pledged LLC Interest.
Enforcement Event
means the service of the Bond Enforcement Notice under Section 7 of the Deed of
Charge.
Federal Securities Laws
means the Securities Act of 1933, as now or hereafter in effect, or any
similar statute hereafter enacted that is analogous in purpose or effect.
General Intangibles
means general intangibles as defined in Article 9 of the UCC.
"
Indemnified Party
means each Secured Creditor, each Affiliate thereof and each of their
respective partners, controlling Persons, directors, officers, trustees, employees and agents.
Indemnified Matters
has the meaning set forth in Section 9.6.
Issuer Pledge Agreement
means the pledge agreement dated on or about the date hereof between the
Issuer and the Trustee.
Lien
means, with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind, or any agreement or arrangement that has the practical effect of
creating a security interest, in respect of such asset.
LLC Agreement
means the limited liability company agreement governing the operation of Nuclear
Energy Holdings, L.L.C.
Pledged Collateral
means, collectively, the Pledged LLC Interest, all General Intangibles related
to the Pledged LLC Interest, all certificates or other instruments representing the Pledged LLC
Interest and all distributions, cash, warrants, rights, instruments and other property or Proceeds
from time to time received, receivable or otherwise distributed in respect of or in exchange for
any or all of the foregoing.
Pledged LLC Interest
means all of the Pledgors right, title and interest as a member of Nuclear
Energy Holdings, L.L.C. a Delaware limited liability company and all of the Pledgors right, title
and interest in, to and under the LLC Agreement.
Pledgor
has the meaning set forth in the preamble hereto.
Proceeds
means Proceeds, as defined in Article 9 of the UCC, and includes all payments or
distributions made with respect to the Pledged Collateral and whatever is receivable or received
when
- 3 -
the Collateral or Proceeds are sold, exchanged, collected, converted or otherwise disposed of,
whether such disposition is voluntary or involuntary.
Secured Creditors
has the meaning set forth in the Deed of Charge.
Secured Obligations
means all amounts, obligations, covenants and duties owing by the Pledgor or
the Issuer to the Secured Creditors, present or future, arising under the Transaction Documents,
whether direct or indirect (including those acquired by assignment), absolute or contingent, due or
to become due, now existing or hereafter arising and however acquired and whether or not evidenced
by any note, guaranty or other instrument or for the payment of money.
Security Interest
means, collectively, the continuing security interests in the Collateral
granted to the Trustee for the benefit of the Secured Creditors pursuant to Section 2.1.
Security Supplement
means any supplement to this Agreement in substantially the form of Exhibit
A, executed by an authorized financial officer of the Pledgor.
Stock
means shares of capital stock (whether denominated as common stock or preferred stock),
beneficial, partnership or membership interests, participations or other equivalents (regardless of
how designated) of or in a corporation, partnership, limited liability company or equivalent
entity, whether voting or non voting, and all rights to subscribe for, purchase or otherwise
acquire any of the foregoing.
Toshiba
means Toshiba Corporation, a corporation organized under the laws of Japan.
Trustee
has the meaning set forth in the preamble hereto.
UCC
means the Uniform Commercial Code as in effect from time to time in the State of New
York or, when the context implies, the Uniform Commercial Code as in effect from time to time in
any other applicable jurisdiction.
Section 1.4 Rules of Interpretation
In this Agreement, unless otherwise specified, (a) the Schedules and Exhibits to this
Agreement, in each case as amended, amended and restated, supplemented or otherwise modified from
time to time in accordance with the provisions hereof, are incorporated herein by reference and (b)
all obligations of the Pledgor hereunder shall be satisfied by the Pledgor at the Pledgors sole
cost and expense.
Section 1.5 Certain Terms
The definitions of terms herein shall apply equally to the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words include and includes shall be deemed to be
followed by the phrase without limitation. The word will shall be construed to have the same
meaning and effect as the word shall. Unless the context requires otherwise (a) any definition
of or reference to any agreement, instrument or other document herein shall be construed as
referring to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein), (b) any reference herein to any Person shall be construed to
include such Persons successors and assigns, (c) the words herein, hereof and hereunder, and
words of similar import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Sections, Exhibits and Schedules
shall be construed to refer to Sections of, and
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Exhibits and Schedules to, this Agreement, (e) any reference to any law or regulation herein
(including the UCC) shall, unless otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time and (f) the words asset and property shall be
construed to have the same meaning and effect and to refer to any and all tangible assets and
properties, including cash, securities, accounts and contract rights.
SECTION
2
GRANT OF SECURITY
Section 2.1 Grant of Security
As security for the prompt and complete payment and performance in full when due (whether at
stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, including
the payment of amounts that would become due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code) of all Secured Obligations, the Pledgor hereby pledges,
assigns, transfers and grants to the Trustee, for its benefit and for the benefit of the Secured
Creditors, a continuing security interest in and Lien on all of its right, title and interest in,
to and under the following, in each case whether now owned or existing or hereafter acquired or
arising and wherever located:
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(a)
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all Pledged Collateral;
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(b)
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all books and Records pertaining to the Pledged Collateral, including all
Collateral Records; and
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(c)
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to the extent not otherwise included, all Proceeds of each of the foregoing and
all accessions to, and substitutions and replacements for, any of the foregoing.
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For avoidance of doubt it is expressly understood and agreed that, to the extent the UCC is revised
subsequent to the date hereof such that the definition of any of the foregoing terms included in
the description of Collateral is changed, the parties hereto desire that any property that is
included in such changed definitions that would not otherwise be included in the foregoing grants
on the date hereof be included in such grants immediately upon the effective date of such revision,
it being the intention of the Pledgor that the description of Collateral set forth above be
construed to include the broadest possible range of assets. Notwithstanding the immediately
preceding sentence, the foregoing grant is intended to apply immediately on the date hereof to all
Collateral to the fullest extent permitted by applicable law regardless of whether any particular
item of Collateral is currently subject to the UCC.
Section 2.2 Grant of Security
Notwithstanding anything to the contrary contained in this Section 2 or elsewhere in this
Agreement, the Pledgor and the Trustee (on behalf of the Secured Creditors) acknowledge and agree
that the Security Interest granted pursuant to this Agreement (including pursuant to this Section
2) to the Trustee for the benefit of the Secured Creditors and securing the Secured Obligations
shall be a first priority Security Interest in the Collateral, junior to no other security
interests. The parties hereto acknowledge, and the Trustee hereby agrees, that the Trustee shall
hold that portion of the Collateral constituting Certificated Securities for and on behalf of the
Secured Creditors as agent for such parties for the purpose of perfecting a Security Interest in
such Collateral.
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SECTION
3
REPRESENTATIONS AND WARRANTIES
The Pledgor represents and warrants to the Trustee and the Secured Creditors, on and as of the
date hereof, that:
Section 3.1 Title
The Pledgor owns the Collateral purported to be owned by it free and clear of any and all
Liens, rights or claims of all other Persons. The Pledgor has not filed or consented to the filing
of (a) any financing statement or analogous document under the UCC or any other applicable laws
covering any Collateral or (b) any assignment in which the Pledgor assigns any Collateral or any
security agreement or similar instrument covering any Collateral with any foreign governmental,
municipal or other office, which financing statement or analogous document, assignment, security
agreement or similar instrument is still in effect, except for any financing statement or analogous
document, assignment, security agreement or similar instrument evidencing Liens being terminated on
the date hereof.
Section 3.2 Names, Locations
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(a)
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Schedule 3.2 sets forth with respect to the Pledgor under the heading Names, (i)
its exact name, as such name appears in the public record of its jurisdiction of
organization which shows the Pledgor to have been formed, (ii) each other name that the
Pledgor has had in the past five years, together with the date of the relevant change,
(iii) a list of all other names (including trade names or similar appellations) used by
the Pledgor or any of its divisions or other business units in connection with the
conduct of its business or the ownership of its properties in the past five years, (iv)
the federal taxpayer identification number of the Pledgor and (v) the jurisdiction of
organization of the Pledgor and its organizational identification number or statement
that the Pledgor has no such number.
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(b)
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Schedule 3.2 sets forth, with respect to the Pledgor, under the heading
Locations the location of its chief executive office and each other chief executive
office of the Pledgor within the past five years, together with dates of the relevant
change. Except as set forth on Schedule 3.2, the Pledgor has not changed its
jurisdiction of organization, chief executive office or other location (as defined in
Section 9-307 of the UCC) in the past four months.
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(c)
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Except as set forth on Schedule 3.2 under the heading Changes in Identity or
Organizational Structure, the Pledgor has not changed its identity or organizational
structure in any way in the past five years. Changes in identity or organizational
structure would include mergers, consolidations and acquisitions, as well as any change
in the form or jurisdiction of the Pledgor. If any such change has occurred, Schedule
3.2 sets forth the date of such change and all information applicable to each acquired
party or constituent party to a merger or consolidation.
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Section 3.3 Filings, Consents
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(a)
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Attached hereto as Exhibit B are true, complete and correct copies of search
reports from the offices where any filings or recordings against the Pledgor with
respect to any property of the Pledgor of the type included in the Collateral have been
made, including
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a true copy of each financing statement, assignment or other filing or recording
identified in such search reports.
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(b)
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Exhibit C sets forth true, complete and correct copies of all UCC financing
statements or other appropriate filings, recordings or registrations containing an
accurate description of the Collateral that have been delivered to the Trustee for
filing in each governmental, municipal or other office specified in Schedule 3.3.
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(c)
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No authorization, approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required for either (i) the pledge or
grant by the Pledgor of the Security Interest purported to be created in favor of the
Trustee hereunder or (ii) the exercise by the Trustee of any rights or remedies in
respect of the Collateral, including voting rights (whether specifically granted or
created hereunder or created or provided for by applicable law), except (A) for the
filings contemplated by clause (b) above and (B) as may be required in connection with
the disposition of the Pledged Collateral by laws generally affecting the offering and
sale of securities.
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(d)
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All filing or recording fees and taxes payable in connection with the filings
and recordings described in clauses (b) and (c) above have been or promptly will be
paid by the Pledgor.
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Section 3.4 Security Interests
The Security Interest constitutes (a) a legal and valid security interest in all Collateral
securing the payment and performance of the Secured Obligations and (b) subject to the completion
of the filings described in Section 3.3 and to value being given, a perfected Security Interest in
all Collateral in which a security interest may be perfected by filing, recording or registering a
financing statement or analogous document under the UCC as in effect in the State of Louisiana.
The Security Interest is and shall be prior to any other Lien on any of the Collateral.
Section 3.5 Pledged Collateral
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(a)
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Schedule 3.5 sets forth under the heading Pledged LLC Interests all Pledged LLC
Interests granted by the Pledgor hereof. The Pledged LLC Interest pledged hereunder by
the Pledgor constitutes, as of the date hereof, that percentage of the issued and
outstanding equity of all classes of Nuclear Energy Holdings, L.L.C. as set forth on
Schedule 3.5 under the heading Pledged LLC Interests.
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(b)
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All of the Pledged LLC Interests have been duly and validly issued and are
fully paid and nonassessable.
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(c)
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No Person other than the Trustee has control (as defined in Sections 8-106
and 9-106 of the UCC) over any Pledged Collateral of the Pledgor constituting
Certificated Securities, and, other than the Pledged LLC Interests that constitute
General Intangibles, there is no Pledged Collateral other than Pledged Collateral that
is represented by Certificated Securities that are in the possession of the Trustee.
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(d)
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All Pledged Collateral represented by Certificated Securities has been
delivered to the Trustee in the State of New York.
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(e)
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There are no restrictions on transfer in the LLC Agreement governing the
Pledged LLC Interests or any other agreement relating to the foregoing which would
limit or restrict (i) the grant of a security interest in the Pledged LLC Interests,
(ii) the perfection of such security interest or (iii) the exercise of remedies in
respect of such perfected security interest in the Pledged LLC Interests, in each case
as contemplated by this Agreement.
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SECTION
4
COVENANTS
Section 4.1 Change of Name; Location of Collateral; Place of Business
Unless the Pledgor has given the Trustee at least 30 days prior written notice, the Pledgor
will not change (i) its name, (ii) its jurisdiction of organization or other location (as defined
in Section 9-307 of the UCC), (iii) the location of its chief executive office, its principal place
of business or any office in which it maintains the Collateral Records (including the establishment
of any such new office or facility), (iv) its identity or organizational structure or (v) its
organizational identification number or its federal taxpayer identification number. The Pledgor
agrees to cooperate with the Trustee in making all filings that are required in order for the
Trustee to continue at all times following such change to have a legal, valid and perfected
Security Interest in all the Collateral having the priority described in Section 2.2.
Section 4.2 Protection of Security
The Pledgor shall, at its own cost and expense, take any and all actions necessary or
desirable to defend title to the Collateral and to defend the Security Interest of the Trustee in
the Collateral and the priority thereof against any Lien against all Persons. The Pledgor shall
not take or permit to be taken any action that could impair the Trustees rights in the Collateral.
Section 4.3 Pledged Collateral
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(a)
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The Pledgor hereby covenants and agrees that, without the prior written consent of
the Trustee, which shall not be unreasonably withheld, delayed or conditioned, it shall
not vote or take any other action to amend or terminate any LLC Agreement, certificate
of formation, by-laws or other organizational documents in any way that materially
changes the rights of the Pledgor with respect to any Pledged Collateral or adversely
affects the validity, perfection or priority of the Trustees Security Interest
(including without limitation, any election that would cause the Pledged LLC Interest
not to be a Security under Section 8-102(a)(15) of the UCC, it being acknowledged
that as of the date hereof the LLC Agreement, in accordance with Section 8-103(c) of
the UCC as in effect in the State of Delaware and Section 8-103(c) of the UCC as in
effect in the State of New York, provides that each limited liability company interest
in the Issuer shall constitute a security within the meaning of, and governed by, (i)
Article 8 of the Uniform Commercial Code (including Section 8 102(a)(15) thereof) as in
effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform
Commercial Code of any other applicable jurisdiction that now or hereafter
substantially includes the 1994 revisions to Article 8 thereof as adopted by the
American Law Institute and the National Conference of Commissioners on Uniform State
Laws and approved by the American Bar Association on February 14, 1995).
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(b)
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The Pledgor hereby covenants and agrees that, in the event it establishes or
acquires rights in any Pledged Collateral after the date hereof, it shall deliver to
the Trustee a completed Security Supplement, together with all supplements to Schedules
hereto, reflecting such new Pledged Collateral and all other Pledged Collateral.
Notwithstanding the foregoing, it is understood and agreed that the Security Interest
of the Trustee shall attach to all Pledged Collateral immediately upon the Pledgors
acquisition of rights therein and shall not be affected by the failure of the Pledgor
to deliver a supplement to Schedule 3.5 as required hereby.
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(c)
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The Pledgor hereby covenants and agrees that it shall enforce all of its rights
with respect to any Pledged Collateral.
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(d)
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The Certificated Securities referred to in Section 3.5(d) shall be held by the
Trustee in the State of New York. With respect to any Pledged Collateral constituting
Certificated Securities acquired or pledged after the date hereof, immediately, and in
any event within ten days of the Pledgor acquiring rights therein, the Pledgor shall
deliver or cause to be delivered to the Trustee all such Certificated Securities, stock
powers duly executed in blank or other instruments of transfer reasonably satisfactory
to the Trustee in the State of New York (which Certificated Securities and stock powers
shall be held by the Trustee in the State of New York) and all such instruments and
documents as the Trustee may reasonably request in order to give effect to the pledge
granted hereby.
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(e)
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Upon the occurrence and during the continuance of an Enforcement Event, the
Trustee shall have the right, without notice to the Pledgor, to transfer all or any
portion of the Pledged Collateral to its name or the name of its nominee or agent. In
addition, upon the occurrence and during the continuance of an Enforcement Event, the
Trustee shall have the right at any time, without notice to the Pledgor, to exchange
any certificates representing Pledged Collateral for certificates of smaller or larger
denominations.
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(f)
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Voting and Distributions
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(i)
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So long as no Enforcement Event shall have occurred and shall be
continuing:
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(A)
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except as otherwise provided in this Section 4.3 or
elsewhere herein, the Pledgor shall be entitled to exercise or refrain
from exercising any and all voting and other consensual rights pertaining
to the Pledged Collateral or any part thereof for any purpose not
inconsistent with the terms of this Agreement or the other Transaction
Documents;
provided
,
however
, that the Pledgor will not be entitled to
exercise any such right if the result thereof could materially and
adversely affect the rights inuring to a holder of the Pledged Collateral
or the rights and remedies of any of the Secured Creditors under this
Agreement or any other Transaction Document or the ability of the Secured
Creditors to exercise the same;
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(B)
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the Trustee shall promptly execute and deliver (or
cause to be executed and delivered) to the Pledgor all proxies and other
instruments as the Pledgor may from time to time reasonably request for
the purpose of enabling the Pledgor to exercise the voting and other
consensual rights when and to the extent that it is entitled to exercise
the same pursuant to
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clause (f)(i)(A) above and to receive the cash Dividends that it is
entitled to receive pursuant to clause (f)(i)(C) below; and
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(C)
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the Pledgor shall be entitled to receive and retain
any and all ordinary cash Dividends, Securities or other property paid on
the Pledged Collateral to the extent and only to the extent that such
ordinary cash Dividends, Securities or other property are permitted by,
and otherwise paid in accordance with, the terms and conditions of the
Transaction Documents and applicable laws, and all such distributions
received by the Pledgor in accordance with this sentence shall be free of
the pledge and Security Interests created hereunder and shall not
constitute Collateral. All noncash Dividends, Securities or other
property, and all distributions, Securities or other property paid or
payable in cash or otherwise in connection with a partial or total
liquidation or dissolution, return of capital, capital surplus or paid-in
surplus, and all other distributions (other than distributions referred
to in the preceding sentence) made on or in respect of the Pledged
Collateral, whether paid or payable in cash or otherwise, whether
resulting from a subdivision, combination or reclassification of the
outstanding Stock of the issuer of any Pledged Collateral or received in
exchange for Pledged Collateral or any part thereof, or in redemption
thereof, or as a result of any merger, consolidation, acquisition or
other exchange of assets to which such issuer may be a party or
otherwise, shall be and become part of the Collateral without any further
action. The Pledgor shall immediately take all steps, if any, required,
necessary or desirable to ensure the validity, perfection, priority and,
if applicable, control (as defined in Article 8 or Article 9 of the
UCC, as applicable) of the Trustee over such Dividends, Securities or
other property, in each case referred to in the immediately preceding
sentence (including delivery thereof to the Trustee), and pending any
such action the Pledgor shall be deemed to hold such Dividends,
Securities or other property in trust for the benefit of the Trustee, and
the same shall be segregated from all other property of the Pledgor.
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(ii)
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Upon the occurrence and during the continuance of an Enforcement
Event:
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(A)
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all rights of the Pledgor to exercise or refrain
from exercising the voting and other consensual rights that it would
otherwise be entitled to exercise pursuant hereto shall cease, and all
such rights shall thereupon become vested in the Trustee who shall
thereupon have the sole right to exercise such voting and other
consensual rights;
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(B)
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in order to permit the Trustee to exercise the
voting and other consensual rights that it may be entitled to exercise
pursuant hereto and to receive all distributions that it may be entitled
to receive hereunder: (1) the Pledgor shall promptly execute and deliver
(or cause to be executed and delivered) to the Trustee all proxies,
payment orders and other instruments as the Trustee may from time to time
reasonably
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request and (2) the Pledgor acknowledges that the Trustee may utilize
the power of attorney set forth in Section 6; and
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(C)
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all rights of the Pledgor to distributions and
other amounts that the Pledgor is authorized to receive pursuant to
clause (f)(i)(C) above shall cease, and all such rights shall thereupon
become vested in the Trustee, which shall have the sole and exclusive
right and authority to receive and retain such distributions and other
amounts.
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(g)
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If all Enforcement Events have been rescinded, the Pledgor will have the right
to exercise the voting and consensual rights and powers that it is entitled to exercise
pursuant to the terms of clause (f)(i) above and to receive the Dividends, Securities
and other property that it is entitled to receive pursuant to clause (f)(i) above.
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SECTION
5
FURTHER ASSURANCES
Section 5.1 Further Assurances
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(a)
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The Pledgor agrees that from time to time, at its expense, it shall promptly
execute and deliver all further instruments and documents and take all further action
that may be necessary or desirable, or that the Trustee may reasonably request, in
order to create and/or maintain the validity, perfection or priority of and protect any
Security Interest granted or purported to be granted hereby or to enable the Trustee to
exercise and enforce its rights and remedies hereunder with respect to any Collateral.
Without limiting the generality of the foregoing, the Pledgor shall:
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(i)
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execute, acknowledge, deliver and cause to be duly filed all such
further instruments, documents, indorsements, powers of attorney or notices, and
take all such actions as may be necessary or desirable, or as the Trustee may
from time to time reasonably request, to preserve, protect and perfect the
Security Interest and the rights and remedies created hereby, including the
payment of any fees and taxes required in connection with the execution and
delivery of this Agreement, the granting of the Security Interest and the filing
of any financing statements or other documents in connection herewith or
therewith; and
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(ii)
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at the Trustees request, appear in and defend any action or
proceeding that may affect the Pledgors title to or the Trustees Security
Interest in all or any material part of the Collateral.
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(b)
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The Pledgor hereby authorizes the Trustee to file a Record or Records,
including financing statements, continuation statements and, in each case, amendments
thereto, in all jurisdictions and with all filing offices as the Trustee may determine,
in its sole discretion, are necessary or advisable to perfect the Security Interest
granted to the Trustee herein, without the signature of the Pledgor. Such financing
statements may describe the Collateral in the same manner as described herein or may
contain an indication or description of the Collateral that describes such property in
any other manner as the Trustee may determine, in its sole discretion, is necessary,
advisable or
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prudent to ensure the perfection of the Security Interest in the Collateral granted to
the Trustee herein. The Pledgor agrees that a photographic or other reproduction of
this Agreement or of a financing statement shall be sufficient as a financing
statement and may be filed as a financing statement in any and all jurisdictions.
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The Pledgor shall, through compliance with the covenants contained herein and through any other
actions that may be necessary or desirable, continuously maintain from the date made the
truthfulness and accuracy of every representation, warranty and certification made herein until the
termination of this Agreement by its terms.
SECTION 6
TRUSTEE APPOINTED ATTORNEY-IN-FACT
Section 6.1 Power of Attorney
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(a)
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The Pledgor hereby irrevocably makes, constitutes and appoints the Trustee (and all
officers, employees or agents designated by the Trustee), until such time as this
Agreement terminates under Section 9.14, as the Pledgors true and lawful agent and
attorney-in-fact, with full authority in the place and stead of the Pledgor and in the
name of the Pledgor, the Trustee or otherwise, from time to time in the Trustees
discretion, to take any action and to execute any instrument that the Trustee may deem
reasonably necessary or advisable to accomplish the purposes of this Agreement,
including the following:
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(i)
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upon the occurrence of an Enforcement Event,
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(A)
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to receive, endorse, assign, collect and deliver
any and all notes, acceptances, checks, drafts, money orders or other
instruments, documents and Chattel Paper or other evidences of payment
relating to the Collateral;
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(B)
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to ask for, demand, collect, sue for, recover,
compound, receive payment of, give receipt for and give discharges and
releases of all or any of the Collateral;
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(C)
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to commence and prosecute any and all suits,
actions or proceedings at law or in equity in any court of competent
jurisdiction to collect or otherwise realize on all or any of the
Collateral or to enforce any rights in respect of any Collateral;
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(D)
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to settle, compromise, compound, adjust or defend
any claims, actions, suits or proceedings relating to all or any of the
Collateral;
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(E)
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to use, sell, assign, transfer, pledge, make any
agreement with respect to or otherwise deal with all or any of the
Collateral;
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(ii)
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to prepare and file Records (including UCC financing statements) as
further described in Section 5.1(b);
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(iii)
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to take or cause to be taken all actions necessary to perform or
comply or cause performance or compliance with the terms of this Agreement,
including to pay or
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discharge taxes or Liens levied or placed upon or threatened against the
Collateral, the legality or validity thereof and the amounts necessary to
discharge the same to be determined by the Trustee in its sole discretion, any
such payments made by the Trustee to become obligations of the Pledgor to the
Trustee, due and payable immediately without demand; and
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(iv)
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generally to sell, transfer, pledge, make any agreement with
respect to or otherwise deal with any of the Collateral as fully and completely
as though the Trustee were the absolute owner thereof for all purposes, and to
do, at the Trustees option and the Pledgors expense, at any time or from time
to time, all acts and things that the Trustee deems reasonably necessary to
protect, preserve or realize upon the Collateral and the Trustees Security
Interest therein in order to effect the intent of this Agreement, all as fully
and effectively as the Pledgor might do.
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(b)
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Notwithstanding anything in this Section 6.1 to the contrary, the Trustee
agrees that it will not exercise any rights under the power of attorney provided for in
Section 6.1(a)(i) or (iv) unless an Enforcement Event has occurred and is continuing.
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Section 6.2 No Duty on the Part of Trustee or Secured Creditors
Notwithstanding any other provision of this Agreement, nothing herein contained shall be
construed as requiring or obligating the Trustee or any other Secured Creditor to make any
commitment or to make any inquiry as to the nature or sufficiency of any payment received by the
Trustee or any Secured Creditor, or to present or file any claim or notice, or to take any action
with respect to the Collateral or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby, and no action taken or omitted to be taken by the Trustee
or any Secured Creditor with respect to the Collateral or any part thereof shall give rise to any
defense, counterclaim or offset in favor of the Pledgor or to any claim or action against the
Trustee or any Secured Creditor. It is understood and agreed that the appointment of the Trustee
as the agent and attorney-in-fact of the Pledgor for the purposes set forth above is coupled with
an interest and is irrevocable. The provisions of this Section shall in no event relieve the
Pledgor of any of its obligations hereunder or under any other Transaction Document with respect to
the Collateral or any part thereof or impose any obligation on the Trustee or any Secured Creditor
to proceed in any particular manner with respect to the Collateral or any part thereof, or in any
way limit the exercise by the Trustee or any Secured Creditor of any other or further right that it
may have on the date of this Agreement or hereafter, whether hereunder, under any other Transaction
Document, by law or otherwise. The Trustee and the Secured Creditors shall be accountable only for
amounts that they actually receive as a result of the exercise of such powers, and neither they nor
any of their officers, directors, employees or agents shall be responsible to the Pledgor for any
act or failure to act hereunder, except for their own gross negligence or willful misconduct.
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SECTION
7
REMEDIES
Section 7.1 Remedies Upon Enforcement Event
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(a)
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Upon the occurrence and during the continuance of an Enforcement Event, the Trustee
may exercise in respect of the Collateral, in addition to all other rights and remedies
provided for herein or otherwise available to it at law or in equity, all the rights
and remedies of a secured party on default under the UCC (whether or not the UCC
applies to the affected Collateral) or any other applicable law, and also may, without
prior notice except as specified below, sell, assign, lease, license (on an exclusive
or non-exclusive basis) or otherwise dispose of the Collateral or any part thereof in
one or more parcels at public or private sale or at any brokers board or on any
securities exchange, at any of the Trustees offices or elsewhere, for cash, on credit
or for future delivery, at such time or times and at such price or prices and upon such
other terms as the Trustee may deem commercially reasonable;
provided
that (i) the
Trustee shall be authorized at any such sale (if it deems it advisable to do so) to
restrict the prospective bidders or purchasers to Persons who will represent and agree
that they are purchasing the Collateral for their own account for investment and not
with a view to the distribution or sale thereof, (ii) upon consummation of any such
sale the Trustee shall have the right to assign, transfer and deliver to the purchaser
or purchasers thereof the Collateral so sold, (iii) each such purchaser at any such
sale shall hold the property sold absolutely, free from any claim or right on the part
of the Pledgor, and (iv) the Pledgor hereby waives (to the extent permitted by law) all
rights of redemption, stay, valuation and appraisal that the Pledgor now has or may at
any time in the future have under any rule of law or statute now existing or hereafter
enacted.
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(b)
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The Trustee or any Secured Creditor may be the purchaser of any or all of the
Collateral at any sale thereof and the Trustee, as collateral agent for and
representative of the Secured Creditors, shall be entitled, for the purpose of bidding
and making settlement or payment of the purchase price for all or any portion of the
Collateral sold at any such public sale, to use and apply any of the Secured
Obligations as a credit on account of the purchase price for any Collateral payable by
the Trustee at such sale.
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(c)
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The Pledgor hereby waives notice of the time and place of any public sale or
the time after which any private sale or other disposition of all or any part of the
Collateral may be made. To the extent such notice may not be waived under applicable
law, any notice made shall be deemed reasonable if sent to the Pledgor, addressed as
set forth in the notice provisions of the Deed of Charge, at least ten days prior to
(i) the date of any such public sale or (ii) the time after which any such private sale
or other disposition may be made. Such notice, in the case of a public sale, shall
state the time and place for such sale and, in the case of a sale at a brokers board
or on a securities exchange, shall state the board or exchange at which such sale is to
be made and the day on which the Collateral, or portion thereof, will first be offered
for sale at such board or exchange. Any such public sale shall be held at such time or
times during ordinary business hours and at such place or places as the Trustee may fix
and state in the notice (if any) of such sale. At any such sale, the Collateral, or
portion thereof, to be
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- 14 -
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sold may be sold in one lot as an entirety or in separate parcels, as the Trustee may
(in its sole and absolute discretion) determine. The Trustee shall not be obligated
to make any sale of any Collateral if it shall determine not to do so, regardless of
the fact that notice of sale of such Collateral shall have been given. The Trustee
may, without notice or publication, adjourn any public or private sale or cause the
same to be adjourned from time to time by announcement at the time and place fixed for
sale, and such sale may, without further notice, be made at the time and place to
which the same was so adjourned. In case any sale of all or any part of the
Collateral is made on credit or for future delivery, the Collateral so sold may be
retained by the Trustee until the sale price is paid by the purchaser or purchasers
thereof, but the Trustee shall not incur any liability in case any such purchaser or
purchasers shall fail to take up and pay for the Collateral so sold, and in case of
any such failure, such Collateral may be sold again upon like notice. For purposes
hereof, a written agreement to purchase the Collateral or any portion thereof shall be
treated as a sale thereof; the Trustee shall be free to carry out such sale pursuant
to such agreement and the Pledgor shall not be entitled to the return of the
Collateral or any portion thereof subject thereto, notwithstanding the fact that after
the Trustee shall have entered into such an agreement all Events of Default shall have
been remedied and the Secured Obligations paid in full. As an alternative to
exercising the power of sale herein conferred upon it, the Trustee may proceed by a
suit or suits at law or in equity to foreclose upon the Collateral and to sell the
Collateral or any portion thereof pursuant to a judgment or decree of a court or
courts having competent jurisdiction or pursuant to a proceeding by a court-appointed
receiver. The Pledgor hereby waives any claims against the Trustee arising by reason
of the fact that the price at which any Collateral may have been sold at such a
private sale was less than the price that might have been obtained at a public sale,
even if the Trustee accepts the first offer received and does not offer such
Collateral to more than one offeree.
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(d)
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If the Proceeds of any sale or other disposition of the Collateral are
insufficient to pay the entire outstanding amount of the Secured Obligations, the
Pledgor shall be liable for the deficiency and the fees of any attorneys employed by
the Trustee to collect such deficiency. The Pledgor further agrees that a breach of
any of the covenants contained in this Section will cause irreparable injury to the
Trustee, that the Trustee has no adequate remedy at law in respect of such breach and,
as a consequence, that each and every covenant contained in this Section shall be
specifically enforceable against the Pledgor, and the Pledgor hereby waives and agrees
not to assert any defenses in an action for specific performance of such covenants
except for a defense that no default has occurred giving rise to the Secured
Obligations becoming due and payable prior to their stated maturities. Nothing in this
Section shall in any way alter the rights of the Trustee hereunder.
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(e)
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The Trustee may sell the Collateral without giving any warranties as to the
Collateral. The Trustee may specifically disclaim any warranties of title or the like.
This procedure will not be considered to adversely affect the commercial
reasonableness of any sale of the Collateral.
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(f)
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The Trustee shall have no obligation to marshal any of the Collateral.
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- 15 -
Section 7.2 Application of Proceeds
The Trustee shall apply the Proceeds of any collection or sale of the Collateral as provided
in the Deed of Charge. Upon any sale of the Collateral by the Trustee (including pursuant to a
power of sale granted by statute or under a judicial proceeding), the receipt by the Trustee or of
the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the
Collateral so sold, and such purchaser or purchasers shall not be obligated to see to the
application of any part of the purchase money paid over to the Trustee or such officer or be
answerable in any way for the misapplication thereof. Any Proceeds received by the Pledgor shall
be held in trust for and forthwith paid over to the Trustee. All Proceeds received by the Trustee
hereunder shall be held by the Trustee in a Cash Collateral Account. All Proceeds while held by
the Trustee (or by the Pledgor in trust for the Trustee) shall continue to be held by the Trustee
(for itself and for the benefit of the Secured Creditors) as collateral security for the Secured
Obligations and shall not constitute payment thereof until applied as provided in the Deed of
Charge.
Section 7.3 Securities Act, Etc.
The Pledgor understands that compliance with the Federal Securities Laws might very strictly
limit the course of conduct of the Trustee if the Trustee were to attempt to dispose of all or any
part of the Pledged Collateral, and might also limit the extent to which or the manner in which any
subsequent transferee of any Pledged Collateral could dispose of the same. Similarly, there may be
other legal restrictions or limitations affecting the Trustee in any attempt to dispose of all or
part of the Pledged Collateral under applicable blue sky or other state securities laws or similar
laws analogous in purpose or effect. The Pledgor recognizes that in light of such restrictions and
limitations the Trustee may, with respect to any sale of the Pledged Collateral, limit the
purchasers to those who will agree, among other things, to acquire such Pledged Collateral for
their own account, for investment and not with a view to the distribution or resale thereof. The
Pledgor acknowledges and agrees that in light of such restrictions and limitations, the Trustee, in
its sole and absolute discretion exercised in good faith and in accordance with applicable laws,
(a) may proceed to make such a sale whether or not a registration statement for the purpose of
registering such Pledged Collateral or part thereof has been filed under the Federal Securities
Laws and (b) may approach and negotiate with a single potential purchaser to effect such sale. The
Pledgor acknowledges and agrees that any such sale might result in prices and other terms less
favorable to the seller than if such sale were a public sale without such restrictions. In the
event of any such sale, the Trustee shall incur no responsibility or liability for selling all or
any part of the Pledged Collateral at a price that the Trustee, in its sole and absolute
discretion, may in good faith deem reasonable under the circumstances, notwithstanding the
possibility that a substantially higher price might have been realized if the sale were deferred
until after registration as aforesaid or if more than a single purchaser were approached. The
provisions of this Section 7.3 will apply notwithstanding the existence of a public or private
market upon which the quotations or sales prices might exceed substantially the price at which the
Trustee sells.
SECTION 8
STANDARD OF CARE; TRUSTEE MAY PERFORM
The powers conferred on the Trustee hereunder are solely intended to protect its interest in
the Collateral and shall not impose any duty upon it to exercise any such powers. Except for the
exercise of reasonable care in the custody of any Collateral in its possession and the accounting
for moneys actually received by it hereunder, the Trustee shall have no duty as to any Collateral
or as to the taking
- 16 -
of any necessary steps to preserve rights against prior parties or any other rights pertaining to
any Collateral. The Trustee shall be deemed to have exercised reasonable care in the custody and
preservation of Collateral in its possession if such Collateral is accorded treatment substantially
equal to that which the Trustee accords its own property. Neither the Trustee nor any of its
directors, officers, employees or agents shall be liable for failure to demand, collect or realize
upon all or any part of the Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any Collateral upon the request of the Pledgor or
otherwise. If the Pledgor fails to perform any agreement contained herein, the Trustee may itself
perform, or cause performance of, such agreement, and the expenses of the Trustee incurred in
connection therewith shall be payable by the Pledgor.
SECTION 9
MISCELLANEOUS
Section 9.1 Notices
All communications and notices hereunder shall (except as otherwise expressly permitted
herein) be in writing and given as provided in the notice provisions of the Deed of Charge.
Section 9.2 Security Interests Absolute
All rights of the Trustee hereunder, the Security Interests and all obligations of the Pledgor
hereunder shall be absolute and unconditional irrespective of (a) any lack of validity or
enforceability of the Deed of Charge, any other Transaction Document, any agreement with respect to
any of the Secured Obligations or any other agreement or instrument relating to any of the
foregoing, (b) any change in the time, manner or place of payment of, or in any other term of, all
or any of the Secured Obligations, or any other amendment or waiver of or any consent to any
departure from the Deed of Charge, any other Transaction Document or any other agreement or
instrument, (c) any exchange, release or non-perfection of any Lien on other collateral, or any
release or amendment or waiver of or consent under or departure from any security document or
guarantee securing or guaranteeing all or any of the Secured Obligations, or (d) any other
circumstance that might otherwise constitute a defense available to, or a discharge of, the Pledgor
in respect of the Secured Obligations or this Agreement (other than the indefeasible payment in
full in cash of the Secured Obligations)
Section 9.3 Survival of Agreement
All representations and warranties made by the Pledgor herein and in the certificates or other
instruments prepared or delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the Secured Creditors and shall survive the issuance of the
Bonds, regardless of any investigation made by the Secured Creditors or on their behalf, and shall
continue in full force and effect until this Agreement shall terminate.
Section 9.4 Binding Effect
The provisions of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, except that the Pledgor may not
assign or otherwise transfer any of its rights or obligations hereunder or any interest in the
Collateral (and any such assignment or transfer shall be null and void) except as expressly
contemplated by this Agreement or the Deed of Charge.
- 17 -
Section 9.5 Successors and Assigns
Whenever in this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants, promises and
agreements by or on behalf of the Pledgor or the Trustee that are contained in this Agreement shall
bind and inure to the benefit of their respective successors and assigns.
Section 9.6 Trustees Fees and Expenses; Indemnification
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(a)
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The Pledgor agrees to pay upon demand to the Trustee the amount of any and all
out-of-pocket expenses, including the fees, disbursements and other charges of its
counsel (including allocated costs of internal counsel and costs of settlement) and of
any experts or agents, that the Trustee may incur in connection with (i) the
administration of this Agreement, (ii) the custody or preservation of, or the sale of,
collection from or other realization upon, any of the Collateral, (iii) the exercise,
enforcement or protection of any of the rights of the Trustee hereunder or (iv) the
failure of the Pledgor to perform or observe any of the provisions hereof.
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(b)
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Without limitation of its indemnification obligations under the other
Transaction Documents, the Pledgor agrees to indemnify the Trustee and the other
Indemnified Parties against, and hold each of them harmless from, any and all claims,
damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs,
disbursements and expenses of any kind or nature (including fees and disbursements of
counsel to the Trustee or any other Indemnified Party), which may be imposed on,
incurred by or asserted against any such Indemnified Party in connection with or
arising out of any investigation, litigation or proceeding, whether or not the Trustee
or any other Indemnified Party is a party thereto, whether direct, indirect, or
consequential and whether based on any federal, state or local law, statute or
regulation, securities or commercial law or regulation, or under common law or in
equity, or in contract, tort or otherwise, in any manner relating to or arising out of
this Agreement, or any act, event or transaction related or attendant to any thereof,
or in connection with any investigation of any potential matter covered hereby
(collectively, the
Indemnified Matters
);
provided
,
however
, that the Pledgor shall
not have any obligation under this Section 9.6(b) to the Trustee or any other
Indemnified Party with respect to any Indemnified Matter resulting primarily from the
gross negligence or willful misconduct of the Trustee or any other Indemnified Party,
as determined by a court of competent jurisdiction in a final non appealable judgment
or order. In addition, the Pledgor shall not be obligated to indemnify any Indemnified
Party for any Indemnified Matter claimed by one or more Indemnified Parties against one
or more other Indemnified Parties.
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(c)
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Any such amounts payable as provided hereunder shall constitute additional
Secured Obligations secured hereby. The provisions of this Section 9.6 shall remain
operative and in full force and effect regardless of the termination of this Agreement
or any other Transaction Document, the consummation of the transactions contemplated
hereby, the repayment of any of the Secured Obligations, the invalidity or
unenforceability of any term or provision of this Agreement or any other Transaction
Document or any investigation made by or on behalf of the Trustee or any Secured
Creditor. All amounts due under this Section 9.6 shall be payable on written demand
therefor. The Pledgor agrees that any indemnification or other protection provided to
any Indemnified Party
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pursuant to this Agreement shall (i) survive payment in full of the Secured
Obligations and (ii) inure to the benefit of any Person who was at any time a Trustee
or Indemnified Party under this Agreement.
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(d)
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The Pledgor agrees that neither the Trustee nor any Indemnified Party shall
have any liability (whether direct or indirect, in contract, tort or otherwise) to the
Pledgor or any of its subsidiaries or any of its equity holders or creditors for or in
connection with the transactions contemplated hereby and in the other Transaction
Documents, except to the extent such liability is found in a final judgment by a court
of competent jurisdiction to have resulted primarily from the Trustees or such
Indemnified Partys gross negligence or willful misconduct. In no event, however, shall
the Trustee or any Indemnified Party be liable on any theory of liability for any
special, indirect, consequential or punitive damages, and the Pledgor hereby waives,
releases and agrees (for itself and on behalf of its subsidiaries) not to sue upon any
such claim for any such damages, whether or not accrued and whether or not known or
suspected to exist in its favor.
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Section 9.7 Governing Law
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING, WITHOUT
LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW
.
Section 9.8 Waivers; Amendment
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(a)
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No failure on the part of the Trustee to exercise and no delay in exercising any
power or right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise thereof
or the exercise of any other right or power. The rights and remedies of the Trustee
and the Secured Creditors hereunder and under the other Transaction Documents are
cumulative and are not exclusive of any rights or remedies that they would otherwise
have. No waiver of any provisions of this Agreement or any other Transaction Document
or consent to any departure by the Pledgor therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) below, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for which
given. No notice to or demand on the Pledgor in any case shall entitle the Pledgor to
any other or further notice or demand in similar or other circumstances.
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(b)
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Neither this Agreement nor any provision hereof may be waived, amended or
modified except pursuant to an agreement or agreements in writing entered into by the
Trustee and the Pledgor, subject to any consent required in accordance with the
Transaction Documents.
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Section 9.9 Waiver of Jury Trial
EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS
- 19 -
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION 9.9
.
Section 9.10 Severability
Any provision of this Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity,
illegality or unenforceability without affecting the validity, legality and enforceability of the
remaining provisions hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
Section 9.11 Execution in Counterparts
This Agreement may be executed in any number of counterparts (and by different parties hereto
in different counterparts), each of which shall constitute an original, but all of which taken
together shall constitute a single contract. This Agreement shall become effective when it shall
have been executed by the Trustee and the Pledgor. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
Section 9.12 Section Titles
The Section titles contained in this Agreement are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of the agreement between the parties hereto.
Section 9.13 Jurisdiction; Consent to Service of Process
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(a)
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The Pledgor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the courts of New York State sitting in
New York County and of the United States District Court for the Southern District of
New York, and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and determined
in such New York State court or, to the fullest extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this Agreement
or any other Transaction Document shall affect any right that the Trustee or any
Secured Creditor may otherwise have to bring any action or proceeding relating to this
Agreement or any other Transaction Document against the Pledgor or any of its property
in the courts of any jurisdiction.
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(b)
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The Pledgor hereby irrevocably and unconditionally waives, to the fullest
extent permitted by applicable law, any objection that it may now or hereafter have to
the laying of venue of any action or proceeding arising out of or relating to this
Agreement or the
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- 20 -
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other Transaction Documents in any court referred to in paragraph (a) of this Section.
Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
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(c)
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The Pledgor hereby irrevocably designates and appoints CT Corporation System,
111 Eighth Avenue, New York, New York 10011 as the agent of the Pledgor to receive on
its behalf service of all process brought against it with respect to any such
proceeding in any such court in the State of New York, such service being hereby
acknowledged by the Pledgor to be effective and binding on it in every respect. If for
any reason such agent shall cease to be available to act as such, then the Pledgor
shall promptly designate a new agent in the Borough of Manhattan in The City of New
York. Nothing in this Agreement will affect the right of any party to this Agreement
to serve process in any other manner permitted by law.
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Section 9.14 Termination
This Agreement and the Security Interest shall terminate when all Secured Obligations then due
and owing have been indefeasibly paid in full in cash, at which time the Trustee shall execute and
deliver to the Pledgor, at the Pledgors expense, all UCC termination statements, releases and
similar documents that the Pledgor shall reasonably request to evidence such termination. Any
execution and delivery of termination statements, releases or other documents pursuant to this
Section 9.14 shall be without recourse to or warranty by the Trustee.
[Remainder of page intentionally left blank]
- 21 -
In Witness Whereof
, the Pledgor and the Trustee have caused this Agreement to be duly executed and
delivered by their respective officers thereunto duly authorized as of the date first written
above.
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The Shaw Group Inc., as Pledgor
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By:
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Name:
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Title:
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The Bank of New York, as Trustee
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By:
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Name:
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Title:
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- 22 -
Schedule 3.2
To the Parent Pledge Agreement
Names and Locations
Names
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Grantors
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Jurisdiction of organization
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correct
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Previous
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Additional
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and organizational
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legal name:
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names:
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names:
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Federal TIN:
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identification number:
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Locations
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` Grantors
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correct
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legal name:
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Location of chief executive office
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Changes in Identity or Organizational Structure
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Grantors
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correct
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legal name:
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Description of structural changes:
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- 1-
Schedule 3.3
To the Parent Pledge Agreement
Filings
- 1 -
Schedule 3.5
To the Parent Pledge Agreement
Pledged LLC Interests
2
EXHIBIT A
TO THE PARENT PLEDGE AGREEMENT
FORM OF SECURITY SUPPLEMENT
This SECURITY SUPPLEMENT, dated as of [
],
20[___], is delivered pursuant to the
Parent Pledge Agreement, dated October 13, 2006 (as it may from time to time be amended, modified
or supplemented, the
Parent Pledge Agreement
), between The Shaw Group Inc., a Louisiana
corporation (the
Pledgor
), and The Bank of New York, as security agent for the Secured Creditors
(herein in such capacity, the
Trustee
).
The Pledgor confirms as set forth in the Parent Pledge Agreement that it pledges, assigns,
transfers and grants to the Trustee, for its benefit and for the benefit of the Secured Creditors,
a continuing security interest in and Lien on all of its right, title and interest in, to and under
the Collateral, in each case whether now owned or existing or hereafter acquired or arising and
wherever located, as security for the prompt and complete payment and performance in full when due
(whether at stated maturity, by required prepayment, declaration, acceleration, demand or
otherwise, including the payment of amounts that would become due but for the operation of the
automatic stay under Section 362(a) of the Bankruptcy Code) of all Secured Obligations.
The Pledgor represents and warrants that the attached Supplements to Schedules accurately and
completely set forth all additional information required pursuant to the Parent Pledge Agreement
and hereby agrees that such Supplements to Schedules shall constitute part of the Schedules to the
Parent Pledge Agreement.
Capitalized terms used but not defined herein shall have the respective meanings ascribed thereto
in the Parent Pledge Agreement.
IN WITNESS WHEREOF, the Pledgor has caused this Security Supplement to be duly executed and
delivered by its duly authorized officer as of [
, 20___].
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The Shaw Group Inc.
, as Pledgor
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By:
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Name:
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Title:
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3
EXHIBIT B
TO THE PARENT PLEDGE AGREEMENT
SEARCH REPORTS
4
EXHIBIT C
TO THE PARENT PLEDGE AGREEMENT
FINANCING STATEMENTS
5
Table of Contents
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Contents
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Page
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SECTION 1 DEFINITIONS; RULES OF INTERPRETATION
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2
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Section 1.1
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Definition of Terms Used Herein
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2
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Section 1.2
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UCC Terms used herein that are defined in the UCC but not defined herein have the meanings given to
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them in the UCC, including the following which are capitalized herein:
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2
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Section 1.3
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General Definitions In this Agreement:
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2
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Section 1.4
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Rules of Interpretation
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4
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Section 1.5
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Certain Terms
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4
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SECTION 2 GRANT OF SECURITY
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5
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Section 2.1
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Grant of Security
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5
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Section 2.2
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Separate and Distinct Grants of Security
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5
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SECTION 3 REPRESENTATIONS AND WARRANTIES
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6
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Section 3.1
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Title
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6
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Section 3.2
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Names, Locations
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6
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Section 3.3
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Filings, Consents
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6
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Section 3.4
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Security Interests
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7
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Section 3.5
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Pledged Collateral
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7
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SECTION 4 COVENANTS
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8
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Section 4.1
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Change of Name; Location of Collateral; Place of Business
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8
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Section 4.2
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Protection of Security
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8
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Section 4.3
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Pledged Collateral
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8
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SECTION 5 FURTHER ASSURANCES;
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11
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Section 5.1
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Further Assurances
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11
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SECTION 6 SECURITY AGENT APPOINTED ATTORNEY-IN-FACT
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12
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Section 6.1
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Power of Attorney
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12
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Section 6.2
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No Duty on the Part of Trustee or Secured Creditors
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13
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SECTION 7 REMEDIES
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14
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Section 7.1
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Remedies Upon Enforcement Event
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14
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Section 7.2
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Application of Proceeds
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16
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Section 7.3
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Securities Act, Etc.
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16
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SECTION 8 STANDARD OF CARE; SECURITY AGENT MAY PERFORM
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16
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SECTION 9 MISCELLANEOUS
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17
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Section 9.1
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Notices
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17
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Section 9.2
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Security Interests Absolute
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17
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Section 9.3
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Survival of Agreement
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17
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Section 9.4
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Binding Effect
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17
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Section 9.5
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Successors and Assigns
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18
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Section 9.6
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Trustees Fees and Expenses; Indemnification
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18
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Section 9.7
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Governing Law
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19
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- i -
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Contents
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Page
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Section 9.8
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Waivers; Amendment
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19
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Section 9.9
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Waiver of Jury Trial
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19
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Section 9.10
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Severability
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20
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Section 9.11
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Execution in Counterparts
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20
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Section 9.12
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Section Titles
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20
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Section 9.13
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Jurisdiction; Consent to Service of Process
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20
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Section 9.14
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Termination
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21
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EXHIBIT A
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FORM OF SECURITY SUPPLEMENT
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EXHIBIT B
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SEARCH REPORTS
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EXHIBIT C
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FINANCING STATEMENTS
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- ii -
EXHIBIT
10.8
ISSUER PLEDGE AGREEMENT
dated October 13, 2006,
between
Nuclear Energy Holdings, L.L.C.
as Pledgor
and
The Bank of New York
as Trustee
This ISSUER PLEDGE AGREEMENT
, dated October 13, 2006 (this
Agreement
), is entered into
between Nuclear Energy Holdings, L.L.C., a limited liability company organized under the laws of
the State of Delaware (the
Pledgor
), and The Bank of New York, as security agent for the Secured
Creditors (as defined below) (herein in such capacity, the
Trustee
).
RECITALS
A.
The Pledgor and the Trustee have entered into a Bond Trust Deed dated October 13, 2006 (the
Bond Trust Deed
), pursuant to which the Pledgor is issuing JPY 50,980,000,000 aggregate principal
amount of 2.20% Fixed Rate Bonds due 2013 and JPY 78,000,000,000 aggregate principal amount of
Floating Rate Bonds due 2013 (together, the
Bonds
).
B.
As a condition precedent to issuance of the Bonds under the Bond Trust Deed, the Pledgor is
required to execute and deliver this Agreement.
In consideration of the premises and for other valuable consideration, the receipt and sufficiency
of which the parties hereto hereby acknowledge, the Pledgor and the Trustee, on behalf of itself
and each Secured Creditor (and each of their respective successors or permitted assigns), hereby
agree as follows:
SECTION 1
DEFINITIONS; RULES OF INTERPRETATION
Section 1.1 Definition of Terms Used Herein
Unless the context otherwise requires, all capitalized terms used but not defined herein shall
have the meanings set forth in the Deed of Charge (as defined below).
Section 1.2 UCC
Terms used herein that are defined in the UCC but not defined herein have the meanings given
to them in the UCC.
Section 1.3 General Definitions
In this Agreement:
Administrative Services Agreement
has the meaning set forth in the Deed of Charge.
Agreement
has the meaning set forth in the preamble hereto.
Bankruptcy Code
means the United States Bankruptcy Code, 11 U.S.C. §§ 101 et. seq.
Cash Collateral Account
means any Deposit Account or Securities Account established by the
Trustee in which cash and Cash Equivalents may from time to time be on deposit or held therein as
provided herein.
Collateral
means the property of the Pledgor described in Section 2.1 in which Security Interests
are granted to the Trustee for the benefit of the Secured Creditors.
Collateral Records
means books, records, ledger cards, files, correspondence, customer lists,
blueprints, technical specifications, manuals, computer software, computer printouts, tapes, disks
and related data processing software and similar items that at any time evidence or contain
information relating to any of the Collateral or are otherwise necessary or helpful in the
collection thereof or realization thereon.
- 2 -
Deed of Charge
means the deed of charge dated on or about the date hereof among the Trustee, the
Issuer, the Account Bank, the Cash Manager and the Principal Paying Agent.
Dividends
means, in relation to any Pledged Stock, all present and future: (a) dividends and
distributions of any kind and any other sum received or receivable in respect of that Pledged
Stock, (b) rights, shares, money or other assets accruing or offered by way of redemption,
substitution, exchange, bonus, option, preference or otherwise in respect of that Pledged Stock,
(c) allotments, offers and rights accruing or offered in respect of that Pledged Stock and (d)
other rights and assets attaching to, deriving from or exercisable by virtue of the ownership of,
that Pledged Stock.
Enforcement Event
means the service of the Bond Enforcement Notice under Section 7 of the Deed of
Charge.
Federal Securities Laws
means the Securities Act of 1933, as now or hereafter in effect, or any
similar statute hereafter enacted that is analogous in purpose or effect.
General Intangibles
means general intangibles as defined in Article 9 of the UCC.
"
Indemnified Party
means each Secured Creditor, each Affiliate thereof and each of their
respective partners, controlling Persons, directors, officers, trustees, employees and agents.
Indemnified Matters
has the meaning set forth in Section 9.6.
Lien
means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind, or any agreement or arrangement that has the practical effect of creating
a security interest, in respect of such asset.
Pledged Collateral
means, collectively, (i) the General Intangibles relating to the Put Option
Agreements, the Swap Guarantee, the US Investment Agreement, the UK Investment Agreement, the
Administrative Services Agreement, the US Shareholders Agreement and the UK Shareholders Agreement,
(ii) the Pledged Stock, (iii) all certificates or other instruments representing the Pledged Stock
and (iv) all Dividends, cash, warrants, rights, instruments and other property or Proceeds from
time to time received, receivable or otherwise distributed in respect of or in exchange for any or
all of the foregoing.
Pledged Stock
means the 800 shares of Class A Stock of Toshiba Nuclear Energy Holdings (US) Inc.,
a Delaware corporation.
Pledgor
has the meaning set forth in the preamble hereto.
Proceeds
means Proceeds as defined in Article 9 of the UCC, and includes all Dividends,
payments or distributions made with respect to the Pledged Collateral and whatever is receivable or
received when Collateral or the Proceeds are sold, exchanged, collected, converted or otherwise
disposed of, whether such disposition is voluntary or involuntary.
Put Option Agreements
means (i) the put option agreement dated on or about the date hereof
between the Pledgor and Toshiba, whereby,
inter alia
, Toshiba grants the Pledgor a Put Right (as
defined therein) in respect of the US Shares and (ii) the put option agreement dated on or about
the date hereof between the Pledgor and Toshiba, whereby,
inter alia
, Toshiba grants the Pledgor a
Put Right (as defined therein)in respect of the UK Shares.
Secured Creditors
has the meaning set forth in the Deed of Charge.
- 3 -
Secured Obligations
means all amounts, obligations, covenants and duties owing by the Pledgor to
the Secured Creditors, present or future, arising under the Transaction Documents, whether direct
or indirect (including those acquired by assignment), absolute or contingent, due or to become due,
now existing or hereafter arising and however acquired and whether or not evidenced by any note,
guaranty or other instrument or for the payment of money.
Security Interest
means, collectively, the continuing security interests in the Collateral
granted to the Trustee for the benefit of the Secured Creditors pursuant to Section 2.1.
Security Supplement
means any supplement to this Agreement in substantially the form of Exhibit
A, executed by an authorized financial officer of the Pledgor.
Stock
means shares of capital stock (whether denominated as common stock or preferred stock) of
or in a corporation, whether voting or non voting and all rights to subscribe for, purchase or
otherwise acquire any of the foregoing.
Swap Guarantee
means the swap guarantee issued by the Swap Guarantor in favor of the Pledgor
dated October 13, 2006.
Swap Guarantor
means Morgan Stanley Capital Services Inc.
Trustee
has the meaning set forth in the preamble hereto.
UCC
means the Uniform Commercial Code as in effect from time to time in the State of New York or,
when the context implies, the Uniform Commercial Code as in effect from time to time in any other
applicable jurisdiction.
UK Investment Agreement
has the meaning set forth in the Deed of Charge.
US Investment Agreement
has the meaning set forth in the Deed of Charge.
UK Shareholders Agreement
has the meaning set forth in the Deed of Charge.
US Shareholders Agreement
has the meaning set forth in the Deed of Charge.
Section 1.4 Rules of Interpretation
In this Agreement, unless otherwise specified, (a) the Schedules and Exhibits to this
Agreement, in each case as amended, amended and restated, supplemented or otherwise modified from
time to time in accordance with the provisions hereof are incorporated herein by reference and (b)
all obligations of the Pledgor hereunder shall be satisfied by the Pledgor at the Pledgors sole
cost and expense.
Section 1.5 Certain Terms
The definitions of terms herein shall apply equally to the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words include and includes shall be deemed to be
followed by the phrase without limitation. The word will shall be construed to have the same
meaning and effect as the word shall. Unless the context requires otherwise (a) any definition
of or reference to any agreement, instrument or other document herein shall be construed as
referring to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein), (b) any reference herein to any Person shall be construed to
include such Persons successors and
- 4 -
assigns, (c) the words herein, hereof and hereunder, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular provision hereof,
(d) all references herein to Sections, Exhibits and Schedules shall be construed to refer to
Sections of, and Exhibits and Schedules to, this Agreement, (e) any reference to any law or
regulation herein (including the UCC) shall, unless otherwise specified, refer to such law or
regulation as amended, modified or supplemented from time to time and (f) the words asset and
property shall be construed to have the same meaning and effect and to refer to any and all
tangible assets and properties, including cash, securities, accounts and contract rights.
SECTION 2
GRANT OF SECURITY
Section 2.1 Grant of Security
As security for the prompt and complete payment and performance in full when due (whether at
stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, including
the payment of amounts that would become due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code) of all Secured Obligations, the Pledgor hereby pledges,
assigns, transfers and grants to the Trustee, for its benefit and for the benefit of the Secured
Creditors, a continuing security interest in and Lien on all of its right, title and interest in,
to and under the following, in each case whether now owned or existing or hereafter acquired or
arising and wherever located:
|
(a)
|
|
all Pledged Collateral;
|
|
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(b)
|
|
all books and Records pertaining to the Pledged Collateral, including all
Collateral Records; and
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(c)
|
|
to the extent not otherwise included, all Proceeds of each of the foregoing and
all accessions to, and substitutions and replacements for, any of the foregoing.
|
For avoidance of doubt it is expressly understood and agreed that, to the extent the UCC is revised
subsequent to the date hereof such that the definition of any of the foregoing terms included in
the description of Collateral is changed, the parties hereto desire that any property that is
included in such changed definitions that would not otherwise be included in the foregoing grants
on the date hereof be included in such grants immediately upon the effective date of such revision,
it being the intention of the Pledgor that the description of Collateral set forth above be
construed to include the broadest possible range of assets. Notwithstanding the immediately
preceding sentence, the foregoing grant is intended to apply immediately on the date hereof to all
Collateral to the fullest extent permitted by applicable law regardless of whether any particular
item of Collateral is currently subject to the UCC.
Section 2.2 Grant of Security
Notwithstanding anything to the contrary contained in this Section 2 or elsewhere in this
Agreement, the Pledgor and the Trustee (on behalf of the Secured Creditors) acknowledge and agree
that the Security Interests granted pursuant to this Agreement (including pursuant to this Section
2) to the Trustee for the benefit of the Secured Creditors and securing the Secured Obligations
shall be a first priority Security Interest in the Collateral, junior to no other security
interests. The parties hereto acknowledge, and the Trustee hereby agrees, that the Trustee shall
hold that portion of the Collateral constituting Certificated Securities for and on behalf of the
Secured Creditors as agent for such parties
- 5 -
for the purpose of perfecting a Security Interest in such Collateral. Notwithstanding anything to
the contrary contained in this Agreement, it is expressly understood and agreed that nothing herein
shall prohibit the Pledgor from exercising its rights under the Put Option Agreement. Nothing
contained herein shall prohibit the Pledgor, prior to the occurrence of an Enforcement Event, from
exercising its rights under the Put Option Agreements where required or permitted to do so under
the terms of the Bond Documents.
SECTION 3
REPRESENTATIONS AND WARRANTIES
The Pledgor represents and warrants to the Trustee and the Secured Creditors, on and as of the
date hereof, that:
Section 3.1 Title
The Pledgor owns the Collateral purported to be owned by it free and clear of any and all
Liens, rights or claims of all other Persons. The Pledgor has not filed or consented to the filing
of (a) any financing statement or analogous document under the UCC or any other applicable laws
covering any Collateral, (b) any assignment in which the Pledgor assigns any Collateral or any
security agreement or similar instrument covering any Collateral with any foreign governmental,
municipal or other office, which financing statement or analogous document, assignment, security
agreement or similar instrument is still in effect, except for any financing statement or analogous
document, assignment, security agreement or similar instrument evidencing Liens being terminated on
the date hereof.
Section 3.2 Names, Locations
|
(a)
|
|
Schedule 3.2 sets forth with respect to the Pledgor under the heading Names,, (i)
its exact name, as such name appears in the public record of its jurisdiction of
organization which shows the Pledgor to have been formed, (ii) each other name that the
Pledgor has had in the past five years, together with the date of the relevant change,
(iii) a list of all other names (including trade names or similar appellations) used by
the Pledgor or any of its divisions or other business units in connection with the
conduct of its business or the ownership of its properties in the past five years, (iv)
the federal taxpayer identification number of the Pledgor and (v) the jurisdiction of
organization of the Pledgor and its organizational identification number or statement
that the Pledgor has no such number.
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(b)
|
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Schedule 3.2 sets forth, with respect to the Pledgor, under the heading
Locations the location of its chief executive office and each other chief executive
office of the Pledgor within the past five years, together with dates of the relevant
change. Except as set forth on Schedule 3.2, the Pledgor has not changed its
jurisdiction of organization, chief executive office or other location (as defined in
Section 9-307 of the UCC) in the past four months.
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(c)
|
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Except as set forth on Schedule 3.2 under the heading Changes in Identity or
Organizational Structure, the Pledgor has not changed its identity or organizational
structure in any way in the past five years. Changes in identity or organizational
structure would include mergers, consolidations and acquisitions, as well as any change
in the form or jurisdiction of the Pledgor. If any such change has occurred, Schedule
3.2
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- 6 -
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sets forth the date of such change and all information applicable to each acquired
party or constituent party to a merger or consolidation.
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Section 3.3 Filings, Consents
|
(a)
|
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Attached hereto as Exhibit B are true, complete and correct copies of search
reports from the offices where any filings or recordings against the Pledgor with
respect to any property of the Pledgor of the type included in the Collateral have been
made, including a true copy of each financing statement, assignment or other filing or
recording identified in such search reports.
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(b)
|
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Exhibit C sets forth true, complete and correct copies of all UCC financing
statements or other appropriate filings, recordings or registrations containing an
accurate description of the Collateral that have been delivered to the Trustee for
filing in each governmental, municipal or other office specified in Schedule 3.3.
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(c)
|
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No authorization, approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required for either (i) the pledge or
grant by the Pledgor of the Security Interests purported to be created in favor of the
Trustee hereunder or (ii) the exercise by the Trustee of any rights or remedies in
respect of the Collateral, including voting rights (whether specifically granted or
created hereunder or created or provided for by applicable law), except (A) for the
filings contemplated by clause (b) above and (B) as may be required in connection with
the disposition of the Pledged Collateral by laws generally affecting the offering and
sale of securities.
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(d)
|
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All filing or recording fees and taxes payable in connection with the filings
and recordings described in clauses (b) and (c) above have been or promptly will be
paid by the Pledgor.
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Section 3.4 Security Interests
The Security Interests constitute (a) legal and valid security interests in all Collateral
securing the payment and performance of the Secured Obligations and (b) subject to the completion
of the filings described in Section 3.3 and to value being given, perfected Security Interests in
all Collateral in which a security interest may be perfected by filing, recording or registering a
financing statement or analogous document under the UCC as in effect in the State of Delaware.
Subject to the Deed of Charge, the Security Interests are and shall be prior to any other Lien on
any of the Collateral.
Section 3.5 Pledged Collateral
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(a)
|
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Schedule 3.5 sets forth under the heading Pledged Stock all Pledged Stock owned
by the Pledgor. The Pledged Stock pledged hereunder by the Pledgor constitutes, as of
the date hereof, that percentage of the issued and outstanding equity of all classes of
Toshiba Nuclear Energy Holdings (US) Inc. as set forth on Schedule 3.5 under the
heading Pledged Stock. Schedule 3.5 identifies any such Pledged Stock that is
represented by Certificated Securities.
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(b)
|
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All of the Pledged Stock has been duly and validly issued and are fully paid
and nonassessable.
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- 7 -
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(c)
|
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No Person other than the Trustee has control (as defined in Sections 8-106
and 9-106 of the UCC) over any Pledged Collateral of the Pledgor constituting
Certificated Securities, and there is no Pledged Collateral other than Pledged
Collateral that is represented by Certificated Securities that are in the possession of
the Trustee.
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(d)
|
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All Pledged Collateral represented by Certificated Securities has been
delivered to the Trustee in the State of New York.
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(e)
|
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There are no restrictions on transfer in any agreement relating to the
foregoing which would limit or restrict (i) the grant of a security interest in the
Pledged Stock, (ii) the perfection of such security interest or (iii) the exercise of
remedies in respect of such perfected security interest in the Pledged Stock, in each
case as contemplated by this Agreement.
|
SECTION 4
COVENANTS
Section 4.1 Change of Name; Location of Collateral; Place of Business
Unless the Pledgor has given the Trustee at least 30 days prior written notice, the Pledgor
will not change (i) its name, (ii) its jurisdiction of organization or other location (as defined
in Section 9-307 of the UCC), (iii) the location of its chief executive office, its principal place
of business or any office in which it maintains the Collateral Records (including the establishment
of any such new office or facility), (iv) its identity or organizational structure or (v) its
organizational identification number or its federal taxpayer identification number. The Pledgor
agrees to cooperate with the Trustee in making all filings that are required in order for the
Trustee to continue at all times following such change to have a legal, valid and perfected
Security Interest in all the Collateral having the priority described in Section 2.2.
Section 4.2 Protection of Security
The Pledgor shall, at its own cost and expense, take any and all actions necessary or
desirable to defend title to the Collateral and to defend the Security Interest of the Trustee in
the Collateral and the priority thereof against any Lien against all Persons. The Pledgor shall
not take or permit to be taken any action that could impair the Trustees rights in the Collateral.
Section 4.3 Pledged Collateral
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(a)
|
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The Pledgor hereby covenants and agrees that, without the prior written consent of
the Trustee, which shall not be unreasonably withheld, delayed or conditioned, it shall
not vote or take any other action to amend or terminate any certificate of
incorporation, by-laws or other organizational documents in any way that materially
changes the rights of the Pledgor with respect to any Pledged Collateral or adversely
affects the validity, perfection or priority of the Trustees Security Interests.
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(b)
|
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The Pledgor hereby covenants and agrees that, in the event it establishes or
acquires rights in any Pledged Collateral after the date hereof, it shall deliver to
the Trustee a completed Security Supplement, together with all supplements to Schedules
hereto, reflecting such new Pledged Collateral and all other Pledged Collateral.
Notwithstanding the foregoing, it is understood and agreed that the Security Interests
of the Trustee shall
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- 8 -
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attach to all Pledged Collateral immediately upon the Pledgors acquisition of rights
therein and shall not be affected by the failure of the Pledgor to deliver a
supplement to Schedule 3.5 as required hereby.
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(c)
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The Pledgor hereby covenants and agrees that it shall enforce all of its rights
with respect to any Pledged Collateral.
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(d)
|
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The Certificated Securities referred to in Section 3.5(d) shall be held by the
Trustee in the State of New York. With respect to any Pledged Collateral constituting
Certificated Securities acquired or pledged after the date hereof, immediately, and in
any event within ten days of the Pledgor acquiring rights therein, the Pledgor shall
deliver or cause to be delivered to the Trustee all such Certificated Securities, stock
powers duly executed in blank or other instruments of transfer reasonably satisfactory
to the Trustee in the State of New York (which Certificated Securities and stock powers
shall be held by the Trustee in the State of New York) and all such instruments and
documents as the Trustee may reasonably request in order to give effect to the pledge
granted hereby.
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(e)
|
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Upon the occurrence and during the continuance of an Enforcement Event, the
Trustee shall have the right, without notice to the Pledgor, to transfer all or any
portion of the Pledged Collateral to its name or the name of its nominee or agent. In
addition, upon the occurrence and during the continuance of an Enforcement Event, the
Trustee shall have the right at any time, without notice to the Pledgor, to exchange
any certificates representing Pledged Collateral for certificates of smaller or larger
denominations.
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(f)
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Voting and Distributions
|
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(i)
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So long as no Enforcement Event shall have occurred and shall be
continuing:
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(A)
|
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except as otherwise provided in this Section 4.3 or
elsewhere herein, the Pledgor shall be entitled to exercise or refrain
from exercising any and all voting and other consensual rights pertaining
to the Pledged Collateral or any part thereof for any purpose not
inconsistent with the terms of this Agreement or the other Transaction
Documents;
provided
,
however
, that the Pledgor will not be entitled to
exercise any such right if the result thereof could materially and
adversely affect the rights inuring to a holder of the Pledged Collateral
or the rights and remedies of any of the Secured Creditors under this
Agreement or any other Transaction Document or the ability of the Secured
Creditors to exercise the same;
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(B)
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the Trustee shall promptly execute and deliver (or
cause to be executed and delivered) to the Pledgor all proxies and other
instruments as the Pledgor may from time to time reasonably request for
the purpose of enabling the Pledgor to exercise the voting and other
consensual rights when and to the extent that it is entitled to exercise
the same pursuant to clause (f)(i)(A) above and to receive the cash
Dividends that it is entitled to receive pursuant to clause (f)(i)(C)
below; and
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(C)
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the Pledgor shall be entitled to receive and retain
any and all ordinary cash Dividends, Securities or other property paid on
the Pledged Collateral to the extent and only to the extent that such
ordinary cash
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- 9 -
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Dividends, Securities or other property are permitted by, and otherwise
paid in accordance with, the terms and conditions of, the other
Transaction Documents and applicable laws, and all such distributions
received by the Pledgor in accordance with this sentence shall be free
of the pledge and Security Interests created hereunder and shall not
constitute Collateral. All noncash Dividends, Securities or other
property, and all Dividends, Securities or other property paid or
payable in cash or otherwise in connection with a partial or total
liquidation or dissolution, return of capital, capital surplus or
paid-in surplus, and all other distributions (other than distributions
referred to in the preceding sentence) made on or in respect of the
Pledged Collateral, whether paid or payable in cash or otherwise,
whether resulting from a subdivision, combination or reclassification
of the outstanding Stock of the issuer of any Pledged Collateral or
received in exchange for Pledged Collateral or any part thereof, or in
redemption thereof, or as a result of any merger, consolidation,
acquisition or other exchange of assets to which such issuer may be a
party or otherwise, shall be and become part of the Collateral without
any further action. The Pledgor shall immediately take all steps, if
any, required, necessary or desirable to ensure the validity,
perfection, priority and, if applicable, control (as defined in
Article 8 or Article 9 of the UCC, as applicable) of the Trustee over
such Dividends, Securities or other property, in each case referred to
in the immediately preceding sentence (including delivery thereof to
the Trustee), and pending any such action the Pledgor shall be deemed
to hold such Dividends, Securities or other property in trust for the
benefit of the Trustee, and the same shall be segregated from all other
property of the Pledgor.
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(ii)
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Upon the occurrence and continuance of an Enforcement Event:
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(A)
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all rights of the Pledgor to exercise or refrain
from exercising the voting and other consensual rights that it would
otherwise be entitled to exercise pursuant hereto shall cease, and all
such rights shall thereupon become vested in the Trustee who shall
thereupon have the sole right to exercise such voting and other
consensual rights;
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(B)
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in order to permit the Trustee to exercise the
voting and other consensual rights that it may be entitled to exercise
pursuant hereto and to receive all Dividends and other distributions that
it may be entitled to receive hereunder: (1) the Pledgor shall promptly
execute and deliver (or cause to be executed and delivered) to the
Trustee all proxies, Dividend payment orders and other instruments as the
Trustee may from time to time reasonably request and (2) the Pledgor
acknowledges that the Trustee may utilize the power of attorney set forth
in Section 6; and
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(C)
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all rights of the Pledgor to Dividends and other
amounts that the Pledgor is authorized to receive pursuant to clause
(f)(i)(C) above shall cease, and all such rights shall thereupon become
vested in the Trustee, which
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shall have the sole and exclusive right and authority to receive and
retain such Dividends and other amounts.
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(g)
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If all Enforcement Events have been rescinded, the Pledgor will have the right
to exercise the voting and consensual rights and powers that it is entitled to exercise
pursuant to the terms clause (f)(i) above and to receive the Dividends, Securities and
other property that it is entitled to receive pursuant to of clause (f)(i) above.
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SECTION 5
FURTHER ASSURANCES
Section 5.1 Further Assurances
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(a)
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The Pledgor agrees that from time to time, at its expense, it shall promptly
execute and deliver all further instruments and documents and take all further action
that may be necessary or desirable, or that the Trustee may reasonably request, in
order to create and/or maintain the validity, perfection or priority of and protect any
Security Interest granted or purported to be granted hereby or to enable the Trustee to
exercise and enforce its rights and remedies hereunder with respect to any Collateral.
Without limiting the generality of the foregoing, the Pledgor shall:
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(i)
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execute, acknowledge, deliver and cause to be duly filed all such
further instruments, documents, indorsements, powers of attorney or notices, and
take all such actions as may be necessary or desirable, or as the Trustee may
from time to time reasonably request, to preserve, protect and perfect the
Security Interests and the rights and remedies created hereby, including the
payment of any fees and taxes required in connection with the execution and
delivery of this Agreement, the granting of the Security Interests and the filing
of any financing statements or other documents in connection herewith or
therewith; and
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(ii)
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at the Trustees request, appear in and defend any action or
proceeding that may affect the Pledgors title to or the Trustees Security
Interests in all or any material part of the Collateral.
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(b)
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The Pledgor hereby authorizes the Trustee to file a Record or Records,
including financing statements, continuation statements and, in each case, amendments
thereto, in all jurisdictions and with all filing offices as the Trustee may determine,
in its sole discretion, are necessary or advisable to perfect the Security Interests
granted to the Trustee herein, without the signature of the Pledgor. Such financing
statements may describe the Collateral in the same manner as described herein or may
contain an indication or description of the Collateral that describes such property in
any other manner as the Trustee may determine, in its sole discretion, is necessary,
advisable or prudent to ensure the perfection of the Security Interests in the
Collateral granted to the Trustee herein. The Pledgor agrees that a photographic or
other reproduction of this Agreement or of a financing statement shall be sufficient as
a financing statement and may be filed as a financing statement in any and all
jurisdictions.
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- 11 -
The Pledgor shall, through compliance with the covenants contained herein and through any other
actions that may be necessary or desirable, continuously maintain from the date made the
truthfulness and accuracy of every representation, warranty and certification made herein until the
termination of this Agreement by its terms.
SECTION 6
TRUSTEE APPOINTED ATTORNEY-IN-FACT
Section 6.1 Power of Attorney
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(a)
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The Pledgor hereby irrevocably makes, constitutes and appoints the Trustee (and all
officers, employees or agents designated by the Trustee), until such time as this
Agreement terminates under Section 9.14, as the Pledgors true and lawful agent and
attorney-in-fact, with full authority in the place and stead of the Pledgor and in the
name of the Pledgor, the Trustee or otherwise, from time to time in the Trustees
discretion, to take any action and to execute any instrument that the Trustee may deem
reasonably necessary or advisable to accomplish the purposes of this Agreement,
including the following:
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(i)
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upon the occurrence of an Enforcement Event,
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(A)
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to receive, endorse, assign, collect and deliver
any and all notes, acceptances, checks, drafts, money orders or other
instruments, documents and Chattel Paper or other evidences of payment
relating to the Collateral;
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(B)
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to ask for, demand, collect, sue for, recover,
compound, receive payment of, give receipt for and give discharges and
releases of all or any of the Collateral;
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(C)
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to commence and prosecute any and all suits,
actions or proceedings at law or in equity in any court of competent
jurisdiction to collect or otherwise realize on all or any of the
Collateral or to enforce any rights in respect of any Collateral;
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(D)
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to settle, compromise, compound, adjust or defend
any claims, actions, suits or proceedings relating to all or any of the
Collateral;
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(E)
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to use, sell, assign, transfer, pledge, make any
agreement with respect to or otherwise deal with all or any of the
Collateral;
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(ii)
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to prepare and file Records (including UCC financing statements) as
further described in Section 5.1(b);
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(iii)
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to take or cause to be taken all actions necessary to perform or
comply or cause performance or compliance with the terms of this Agreement,
including to pay or discharge taxes or Liens levied or placed upon or threatened
against the Collateral, the legality or validity thereof and the amounts
necessary to discharge the same to be determined by the Trustee in its sole
discretion, any
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such payments made by the Trustee to become obligations of the Pledgor to the
Trustee, due and payable immediately without demand; and
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(iv)
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generally to sell, transfer, pledge, make any agreement with
respect to or otherwise deal with any of the Collateral as fully and completely
as though the Trustee were the absolute owner thereof for all purposes, and to
do, at the Trustees option and the Pledgors expense, at any time or from time
to time, all acts and things that the Trustee deems reasonably necessary to
protect, preserve or realize upon the Collateral and the Trustees Security
Interest therein in order to effect the intent of this Agreement, all as fully
and effectively as the Pledgor might do.
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(b)
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Notwithstanding anything in this Section 6.1 to the contrary, the Trustee
agrees that it will not exercise any rights under the power of attorney provided for in
Section 6.1(a)(i) or (iv) unless an Enforcement Event has occurred and is continuing.
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Section 6.2 No Duty on the Part of Trustee or Secured Creditors
Notwithstanding any other provision of this Agreement, nothing herein contained shall be
construed as requiring or obligating the Trustee or any other Secured Creditor to make any
commitment or to make any inquiry as to the nature or sufficiency of any payment received by the
Trustee or any Secured Creditor, or to present or file any claim or notice, or to take any action
with respect to the Collateral or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby, and no action taken or omitted to be taken by the Trustee
or any Secured Creditor with respect to the Collateral or any part thereof shall give rise to any
defense, counterclaim or offset in favor of the Pledgor or to any claim or action against the
Trustee or any Secured Creditor. It is understood and agreed that the appointment of the Trustee
as the agent and attorney-in-fact of the Pledgor for the purposes set forth above is coupled with
an interest and is irrevocable. The provisions of this Section shall in no event relieve the
Pledgor of any of its obligations hereunder or under any other Transaction Document with respect to
the Collateral or any part thereof or impose any obligation on the Trustee or any Secured Creditor
to proceed in any particular manner with respect to the Collateral or any part thereof, or in any
way limit the exercise by the Trustee or any Secured Creditor of any other or further right that it
may have on the date of this Agreement or hereafter, whether hereunder, under any other Transaction
Document, by law or otherwise. The Trustee and the Secured Creditors shall be accountable only for
amounts that they actually receive as a result of the exercise of such powers, and neither they nor
any of their officers, directors, employees or agents shall be responsible to the Pledgor for any
act or failure to act hereunder, except for their own gross negligence or willful misconduct.
SECTION 7
REMEDIES
Section 7.1 Remedies Upon Enforcement Event
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(a)
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Upon the occurrence and during the continuance of an Enforcement Event, the Trustee
may exercise in respect of the Collateral, in addition to all other rights and remedies
provided for herein or otherwise available to it at law or in equity, all the rights
and remedies of a secured party on default under the UCC (whether or not the UCC
applies
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- 13 -
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to the affected Collateral) or any other applicable law, and also may, without prior
notice except as specified below, sell, assign, lease, license (on an exclusive or
non-exclusive basis) or otherwise dispose of the Collateral or any part thereof in one
or more parcels at public or private sale or at any brokers board or on any
securities exchange, at any of the Trustees offices or elsewhere, for cash, on credit
or for future delivery, at such time or times and at such price or prices and upon
such other terms as the Trustee may deem commercially reasonable;
provided
that (i)
the Trustee shall be authorized at any such sale (if it deems it advisable to do so)
to restrict the prospective bidders or purchasers to Persons who will represent and
agree that they are purchasing the Collateral for their own account for investment and
not with a view to the distribution or sale thereof, (ii) upon consummation of any
such sale the Trustee shall have the right to assign, transfer and deliver to the
purchaser or purchasers thereof the Collateral so sold, (iii) each such purchaser at
any such sale shall hold the property sold absolutely, free from any claim or right on
the part of the Pledgor, and (iv) the Pledgor hereby waives (to the extent permitted
by law) all rights of redemption, stay, valuation and appraisal that the Pledgor now
has or may at any time in the future have under any rule of law or statute now
existing or hereafter enacted.
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(b)
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The Trustee or any Secured Creditor may be the purchaser of any or all of the
Collateral at any sale thereof and the Trustee, as collateral agent for and
representative of the Secured Creditors, shall be entitled, for the purpose of bidding
and making settlement or payment of the purchase price for all or any portion of the
Collateral sold at any such public sale, to use and apply any of the Secured
Obligations as a credit on account of the purchase price for any Collateral payable by
the Trustee at such sale.
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(c)
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The Pledgor hereby waives notice of the time and place of any public sale or
the time after which any private sale or other disposition of all or any part of the
Collateral may be made. To the extent such notice may not be waived under applicable
law, any notice made shall be deemed reasonable if sent to the Pledgor, addressed as
set forth in the notice provisions of the Deed of Charge, at least ten days prior to
(i) the date of any such public sale or (ii) the time after which any such private sale
or other disposition may be made. Such notice, in the case of a public sale, shall
state the time and place for such sale and, in the case of a sale at a brokers board
or on a securities exchange, shall state the board or exchange at which such sale is to
be made and the day on which the Collateral, or portion thereof, will first be offered
for sale at such board or exchange. Any such public sale shall be held at such time or
times during ordinary business hours and at such place or places as the Trustee may fix
and state in the notice (if any) of such sale. At any such sale, the Collateral, or
portion thereof, to be sold may be sold in one lot as an entirety or in separate
parcels, as the Trustee may (in its sole and absolute discretion) determine. The
Trustee shall not be obligated to make any sale of any Collateral if it shall determine
not to do so, regardless of the fact that notice of sale of such Collateral shall have
been given. The Trustee may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to time by announcement at the
time and place fixed for sale, and such sale may, without further notice, be made at
the time and place to which the same was so adjourned. In case any sale of all or any
part of the Collateral is made on credit or for future delivery, the Collateral so sold
may be retained by the Trustee until the sale price
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is paid by the purchaser or purchasers thereof, but the Trustee shall not incur any
liability in case any such purchaser or purchasers shall fail to take up and pay for
the Collateral so sold and in case of any such failure, such Collateral may be sold
again upon like notice. For purposes hereof, a written agreement to purchase the
Collateral or any portion thereof shall be treated as a sale thereof; the Trustee
shall be free to carry out such sale pursuant to such agreement and the Pledgor shall
not be entitled to the return of the Collateral or any portion thereof subject
thereto, notwithstanding the fact that after the Trustee shall have entered into such
an agreement all Events of Default shall have been remedied and the Secured
Obligations paid in full. As an alternative to exercising the power of sale herein
conferred upon it, the Trustee may proceed by a suit or suits at law or in equity to
foreclose upon the Collateral and to sell the Collateral or any portion thereof
pursuant to a judgment or decree of a court or courts having competent jurisdiction or
pursuant to a proceeding by a court-appointed receiver. The Pledgor hereby waives any
claims against the Trustee arising by reason of the fact that the price at which any
Collateral may have been sold at such a private sale was less than the price that
might have been obtained at a public sale, even if the Trustee accepts the first offer
received and does not offer such Collateral to more than one offeree.
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(d)
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If the Proceeds of any sale or other disposition of the Collateral are
insufficient to pay the entire outstanding amount of the Secured Obligations, the
Pledgor shall be liable for the deficiency and the fees of any attorneys employed by
the Trustee to collect such deficiency. The Pledgor further agrees that a breach of
any of the covenants contained in this Section will cause irreparable injury to the
Trustee, that the Trustee has no adequate remedy at law in respect of such breach and,
as a consequence, that each and every covenant contained in this Section shall be
specifically enforceable against the Pledgor, and the Pledgor hereby waives and agrees
not to assert any defenses in an action for specific performance of such covenants
except for a defense that no default has occurred giving rise to the Secured
Obligations becoming due and payable prior to their stated maturities. Nothing in this
Section shall in any way alter the rights of the Trustee hereunder.
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(e)
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The Trustee may sell the Collateral without giving any warranties as to the
Collateral. The Trustee may specifically disclaim any warranties of title or the like.
This procedure will not be considered to adversely affect the commercial
reasonableness of any sale of the Collateral.
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(f)
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The Trustee shall have no obligation to marshal any of the Collateral.
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Section 7.2 Application of Proceeds
The Trustee shall apply the Proceeds of any collection or sale of the Collateral as provided
in the Deed of Charge. Upon any sale of the Collateral by the Trustee (including pursuant to a
power of sale granted by statute or under a judicial proceeding), the receipt by the Trustee or of
the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the
Collateral so sold, and such purchaser or purchasers shall not be obligated to see to the
application of any part of the purchase money paid over to the Trustee or such officer or be
answerable in any way for the misapplication thereof. Any Proceeds received by the Pledgor shall
be held in trust for and forthwith
- 15 -
paid over to the Trustee. All Proceeds received by the Trustee hereunder shall be held by the
Trustee in a Cash Collateral Account. All Proceeds while held by the Trustee (or by the Pledgor in
trust for the Trustee) shall continue to be held by the Trustee (for itself and for the benefit of
the Secured Creditors) as collateral security for the Secured Obligations and shall not constitute
payment thereof until applied as provided in the Deed of Charge.
Section 7.3 Securities Act, Etc.
The Pledgor understands that compliance with the Federal Securities Laws might very strictly
limit the course of conduct of the Trustee if the Trustee were to attempt to dispose of all or any
part of the Pledged Collateral, and might also limit the extent to which or the manner in which any
subsequent transferee of any Pledged Collateral could dispose of the same. Similarly, there may be
other legal restrictions or limitations affecting the Trustee in any attempt to dispose of all or
part of the Pledged Collateral under applicable blue sky or other state securities laws or similar
laws analogous in purpose or effect. The Pledgor recognizes that in light of such restrictions and
limitations the Trustee may, with respect to any sale of the Pledged Collateral, limit the
purchasers to those who will agree, among other things, to acquire such Pledged Collateral for
their own account, for investment and not with a view to the distribution or resale thereof. The
Pledgor acknowledges and agrees that in light of such restrictions and limitations, the Trustee, in
its sole and absolute discretion exercised in good faith and in accordance with applicable laws,
(a) may proceed to make such a sale whether or not a registration statement for the purpose of
registering such Pledged Collateral or part thereof has been filed under the Federal Securities
Laws and (b) may approach and negotiate with a single potential purchaser to effect such sale. The
Pledgor acknowledges and agrees that any such sale might result in prices and other terms less
favorable to the seller than if such sale were a public sale without such restrictions. In the
event of any such sale, the Trustee shall incur no responsibility or liability for selling all or
any part of the Pledged Collateral at a price that the Trustee, in its sole and absolute
discretion, may in good faith deem reasonable under the circumstances, notwithstanding the
possibility that a substantially higher price might have been realized if the sale were deferred
until after registration as aforesaid or if more than a single purchaser were approached. The
provisions of this Section 7.3 will apply notwithstanding the existence of a public or private
market upon which the quotations or sales prices might exceed substantially the price at which the
Trustee sells.
SECTION 8
STANDARD OF CARE; TRUSTEE MAY PERFORM
The powers conferred on the Trustee hereunder are solely intended to protect its interest in
the Collateral and shall not impose any duty upon it to exercise any such powers. Except for the
exercise of reasonable care in the custody of any Collateral in its possession and the accounting
for moneys actually received by it hereunder, the Trustee shall have no duty as to any Collateral
or as to the taking of any necessary steps to preserve rights against prior parties or any other
rights pertaining to any Collateral. The Trustee shall be deemed to have exercised reasonable care
in the custody and preservation of Collateral in its possession if such Collateral is accorded
treatment substantially equal to that which the Trustee accords its own property. Neither the
Trustee nor any of its directors, officers, employees or agents shall be liable for failure to
demand, collect or realize upon all or any part of the Collateral or for any delay in doing so or
shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of
the Pledgor or otherwise. If the Pledgor fails to perform any agreement contained herein, the
Trustee may itself perform, or cause performance of, such
- 16 -
agreement, and the expenses of the Trustee incurred in connection therewith shall be payable by the
Pledgor in accordance with the Deed of Charge.
SECTION 9
MISCELLANEOUS
Section 9.1 Notices
All communications and notices hereunder shall (except as otherwise expressly permitted
herein) be in writing and given as provided in the notice provisions of the Deed of Charge.
Section 9.2 Security Interests Absolute
All rights of the Trustee hereunder, the Security Interests and all obligations of the Pledgor
hereunder shall be absolute and unconditional irrespective of (a) any lack of validity or
enforceability of the Deed of Charge, any other Transaction Document, any agreement with respect to
any of the Secured Obligations or any other agreement or instrument relating to any of the
foregoing, (b) any change in the time, manner or place of payment of, or in any other term of, all
or any of the Secured Obligations, or any other amendment or waiver of or any consent to any
departure from the Deed of Charge, any other Transaction Document or any other agreement or
instrument, (c) any exchange, release or non-perfection of any Lien on other collateral, or any
release or amendment or waiver of or consent under or departure from any security document or
guarantee securing or guaranteeing all or any of the Secured Obligations, or (d) any other
circumstance that might otherwise constitute a defense available to, or a discharge of, the Pledgor
in respect of the Secured Obligations or this Agreement (other than the indefeasible payment in
full in cash of the Secured Obligations)
Section 9.3 Survival of Agreement
All representations and warranties made by the Pledgor herein and in the certificates or other
instruments prepared or delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the Secured Creditors and shall survive the issuance of the
Bonds, regardless of any investigation made by the Secured Creditors or on their behalf, and shall
continue in full force and effect until this Agreement shall terminate.
Section 9.4 Binding Effect
The provisions of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, except that the Pledgor may not
assign or otherwise transfer any of its rights or obligations hereunder or any interest in the
Collateral (and any such assignment or transfer shall be null and void) except as expressly
contemplated by this Agreement or the Deed of Charge.
Section 9.5 Successors and Assigns
Whenever in this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants, promises and
agreements by or on behalf of the Pledgor or the Trustee that are contained in this Agreement shall
bind and inure to the benefit of their respective successors and assigns.
-17-
Section 9.6 Trustees Fees and Expenses; Indemnification
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(a)
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The Pledgor agrees to pay upon demand to the Trustee the amount of any and all
out-of-pocket expenses, including the fees, disbursements and other charges of its
counsel (including allocated costs of internal counsel and costs of settlement) and of
any experts or agents, that the Trustee may incur in connection with (i) the
administration of this Agreement, (ii) the custody or preservation of, or the sale of,
collection from or other realization upon, any of the Collateral, (iii) the exercise,
enforcement or protection of any of the rights of the Trustee hereunder or (iv) the
failure of the Pledgor to perform or observe any of the provisions hereof.
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(b)
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Without limitation of its indemnification obligations under the other
Transaction Documents, the Pledgor agrees to indemnify the Trustee and the other
Indemnified Parties against, and hold each of them harmless from, any and all claims,
damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs,
disbursements and expenses of any kind or nature (including fees and disbursements of
counsel to the Trustee or any other Indemnified Party), which may be imposed on,
incurred by or asserted against any such Indemnified Party in connection with or
arising out of any investigation, litigation or proceeding, whether or not the Trustee
or any other Indemnified Party is a party thereto, whether direct, indirect, or
consequential and whether based on any federal, state or local law, statute or
regulation, securities or commercial law or regulation, or under common law or in
equity, or in contract, tort or otherwise, in any manner relating to or arising out of
this Agreement, or any act, event or transaction related or attendant to any thereof,
or in connection with any investigation of any potential matter covered hereby
(collectively, the
Indemnified Matters
);
provided
,
however
, that the Pledgor shall
not have any obligation under this Section 9.6(b) to the Trustee or any other
Indemnified Party with respect to any Indemnified Matter resulting primarily from the
gross negligence or willful misconduct of the Trustee or any other Indemnified Party,
as determined by a court of competent jurisdiction in a final non appealable judgment
or order. In addition, the Pledgor shall not be obligated to indemnify any Indemnified
Party for any Indemnified Matter claimed by one or more Indemnified Parties against one
or more other Indemnified Parties.
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(c)
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Any such amounts payable as provided hereunder shall constitute additional
Secured Obligations secured hereby. The provisions of this Section 9.6 shall remain
operative and in full force and effect regardless of the termination of this Agreement
or any other Transaction Document, the consummation of the transactions contemplated
hereby, the repayment of any of the Secured Obligations, the invalidity or
unenforceability of any term or provision of this Agreement or any other Transaction
Document or any investigation made by or on behalf of the Trustee or any Secured
Creditor. All amounts due under this Section 9.6 shall be payable on written demand
therefor. The Pledgor agrees that any indemnification or other protection provided to
any Indemnified Party pursuant to this Agreement shall (i) survive payment in full of
the Secured Obligations and (ii) inure to the benefit of any Person who was at any time
a Trustee or Indemnified Party under this Agreement.
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(d)
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The Pledgor agrees that neither the Trustee nor any Indemnified Party shall
have any liability (whether direct or indirect, in contract, tort or otherwise) to the
Pledgor or any of
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-18-
its subsidiaries or any of its equity holders or creditors for or in connection with
the transactions contemplated hereby and in the other Transaction Documents, except to
the extent such liability is found in a final judgment by a court of competent
jurisdiction to have resulted primarily from the Trustees or such Indemnified Partys
gross negligence or willful misconduct. In no event, however, shall the Trustee or any
Indemnified Party be liable on any theory of liability for any special, indirect,
consequential or punitive damages, and the Pledgor hereby waives, releases and agrees
(for itself and on behalf of its subsidiaries) not to sue upon any such claim for any
such damages, whether or not accrued and whether or not known or suspected to exist in
its favor.
Section 9.7 Governing Law
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING, WITHOUT
LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW
.
Section 9.8 Waivers; Amendment
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(a)
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No failure on the part of the Trustee to exercise and no delay in exercising any
power or right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise thereof
or the exercise of any other right or power. The rights and remedies of the Trustee
and the Secured Creditors hereunder and under the other Transaction Documents are
cumulative and are not exclusive of any rights or remedies that they would otherwise
have. No waiver of any provisions of this Agreement or any other Transaction Document
or consent to any departure by the Pledgor therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) below, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for which
given. No notice to or demand on the Pledgor in any case shall entitle the Pledgor to
any other or further notice or demand in similar or other circumstances.
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(b)
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Neither this Agreement nor any provision hereof may be waived, amended or
modified except pursuant to an agreement or agreements in writing entered into by the
Trustee and the Pledgor, subject to any consent required in accordance with the
Transaction Documents.
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Section 9.9 Waiver of Jury Trial
EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY
-19-
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
9.9
.
Section 9.10 Severability
Any provision of this Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity,
illegality or unenforceability without affecting the validity, legality and enforceability of the
remaining provisions hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
Section 9.11 Execution in Counterparts
This Agreement may be executed in any number of counterparts (and by different parties hereto
in different counterparts), each of which shall constitute an original, but all of which taken
together shall constitute a single contract. This Agreement shall become effective when it shall
have been executed by the Trustee and the Pledgor. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
Section 9.12 Section Titles
The Section titles contained in this Agreement are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of the agreement between the parties hereto.
Section 9.13 Jurisdiction; Consent to Service of Process
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(a)
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The Pledgor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the courts of New York State sitting in
New York County and of the United States District Court for the Southern District of
New York, and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and determined
in such New York State court or, to the fullest extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this Agreement
or any other Transaction Document shall affect any right that the Trustee or any
Secured Creditor may otherwise have to bring any action or proceeding relating to this
Agreement or any other Transaction Document against the Pledgor or any of its property
in the courts of any jurisdiction.
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(b)
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The Pledgor hereby irrevocably and unconditionally waives, to the fullest
extent permitted by applicable law, any objection that it may now or hereafter have to
the laying of venue of any action or proceeding arising out of or relating to this
Agreement or the other Transaction Documents in any court referred to in paragraph (a)
of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
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-20-
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(c)
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The Pledgor hereby irrevocably designates and appoints CT Corporation System,
111 Eighth Avenue, New York, New York 10011 as the agent of the Pledgor to receive on
its behalf service of all process brought against it with respect to any such
proceeding in any such court in the State of New York, such service being hereby
acknowledged by the Pledgor to be effective and binding on it in every respect. If for
any reason such agent shall cease to be available to act as such, then the Pledgor
shall promptly designate a new agent in the Borough of Manhattan in The City of New
York. Nothing in this Agreement will affect the right of any party to this Agreement
to serve process in any other manner permitted by law.
|
Section 9.14 Termination
This Agreement and the Security Interests shall terminate when all Secured Obligations then
due and owing have been indefeasibly paid in full in cash, at which time the Trustee shall execute
and deliver to the Pledgor, at the Pledgors expense, all UCC termination statements, releases and
similar documents that the Pledgor shall reasonably request to evidence such termination. Any
execution and delivery of termination statements, releases or other documents pursuant to this
Section 9.14 shall be without recourse to or warranty by the Trustee.
[Remainder of page intentionally left blank]
-21-
In Witness Whereof
, the Pledgor and the Trustee have caused this Agreement to be duly executed and
delivered by their respective officers thereunto duly authorized as of the date first written
above.
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Nuclear Energy Holdings, L.L.C., as Pledgor
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By:
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Name:
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Title:
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The Bank of New York, as Trustee
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By:
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Name:
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Title:
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-22-
Schedule 3.2
To the Issuer Pledge Agreement
Names and Locations
Names
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Grantors
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Jurisdiction of organization
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correct
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Previous
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Additional
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and organizational
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legal name:
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names:
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names:
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Federal TIN:
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identification number:
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Locations
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` Grantors
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correct
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legal name:
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Location of chief executive office
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Changes in Identity or Organizational Structure
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Grantors
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correct
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legal name:
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Description of structural changes:
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- 1 -
Schedule 3.3
To the Issuer Pledge Agreement
Filings
- 1 -
Schedule 3.5
To the Issuer Pledge Agreement
Pledged Stock
2
EXHIBIT A
TO THE ISSUER PLEDGE AGREEMENT
FORM OF SECURITY SUPPLEMENT
This SECURITY SUPPLEMENT, dated as of [
, 200[_],
is delivered pursuant to the
Issuer Pledge Agreement, dated October 13, 2006 (as it may from time to time be amended, modified
or supplemented, the
Issuer Pledge Agreement
), between Nuclear Energy Holdings, LLC, a limited
liability company organized under the laws of the State of Delaware (the
Pledgor
), and The Bank
of New York, as security agent for the Secured Creditors (herein in such capacity, the
Trustee
).
The Pledgor confirms as set forth in the Issuer Pledge Agreement that it (a) pledges, assigns,
transfers and grants to the Trustee, for its benefit and for the benefit of the Secured Creditors,
a continuing security interest in and Lien on all of its right, title and interest in, to and under
the Collateral, in each case whether now owned or existing or hereafter acquired or arising and
wherever located, as security for the prompt and complete payment and performance in full when due
(whether at stated maturity, by required prepayment, declaration, acceleration, demand or
otherwise, including the payment of amounts that would become due but for the operation of the
automatic stay under Section 362(a) of the Bankruptcy Code) of all Secured Obligations.
The Pledgor represents and warrants that the attached Supplements to Schedules accurately and
completely set forth all additional information required pursuant to the Issuer Pledge Agreement
and hereby agrees that such Supplements to Schedules shall constitute part of the Schedules to the
Issuer Pledge Agreement.
Capitalized terms used but not defined herein shall have the respective meanings ascribed thereto
in the Issuer Pledge Agreement.
IN WITNESS WHEREOF, the Pledgor has caused this Security Supplement to be duly executed and
delivered by its duly authorized officer as of [
, 20___].
Nuclear Energy Holdings, L.L.C.
, as Pledgor
3
EXHIBIT B
TO THE ISSUER PLEDGE AGREEMENT
SEARCH REPORTS
4
EXHIBIT C
TO THE ISSUER PLEDGE AGREEMENT
FINANCING STATEMENTS
5
Table of Contents
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Contents
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Page
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SECTION 1 DEFINITIONS; RULES OF INTERPRETATION
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2
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Section 1.1
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Definition of Terms Used Herein
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2
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Section 1.2
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UCC Terms used herein that are defined in the UCC but not defined
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2
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herein have the meanings given to them in the UCC, including the
following which are capitalized herein:
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Section 1.3
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General Definitions In this Agreement:
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2
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Section 1.4
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Rules of Interpretation
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4
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Section 1.5
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Certain Terms
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4
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SECTION 2 GRANT OF SECURITY
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5
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Section 2.1
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Grant of Security
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5
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Section 2.2
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Separate and Distinct Grants of Security
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5
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SECTION 3 REPRESENTATIONS AND WARRANTIES
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6
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Section 3.1
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Title
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6
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Section 3.2
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Names, Locations
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6
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Section 3.3
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Filings, Consents
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7
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Section 3.4
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Security Interests
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7
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Section 3.5
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Pledged Collateral
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7
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SECTION 4 COVENANTS
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8
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Section 4.1
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Change of Name; Location of Collateral; Place of Business
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8
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Section 4.2
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Protection of Security
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8
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Section 4.3
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Pledged Collateral
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8
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SECTION 5 FURTHER ASSURANCES;
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11
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Section 5.1
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Further Assurances
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11
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SECTION 6 SECURITY AGENT APPOINTED ATTORNEY-IN-FACT
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12
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Section 6.1
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Power of Attorney
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12
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Section 6.2
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No Duty on the Part of Trustee or Secured Creditors
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13
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SECTION 7 REMEDIES
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13
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Section 7.1
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Remedies Upon Enforcement Event
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13
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Section 7.2
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Application of Proceeds
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15
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Section 7.3
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Securities Act, Etc.
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16
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SECTION 8 STANDARD OF CARE; SECURITY AGENT MAY PERFORM
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16
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SECTION 9 MISCELLANEOUS
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17
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Section 9.1
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Notices
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17
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Section 9.2
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Security Interests Absolute
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17
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Section 9.3
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Survival of Agreement
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17
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Section 9.4
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Binding Effect
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17
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Section 9.5
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Successors and Assigns
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17
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Section 9.6
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Trustees Fees and Expenses; Indemnification
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18
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Section 9.7
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Governing Law
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19
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- i -
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Contents
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Page
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Section 9.8
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Waivers; Amendment
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19
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Section 9.9
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Waiver of Jury Trial
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19
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Section 9.10
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Severability
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20
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Section 9.11
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Execution in Counterparts
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20
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Section 9.12
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Section Titles
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20
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Section 9.13
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Jurisdiction; Consent to Service of Process
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20
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Section 9.14
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Termination
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21
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EXHIBIT A
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FORM OF SECURITY SUPPLEMENT
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EXHIBIT B
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SEARCH REPORTS
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EXHIBIT C
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FINANCING STATEMENTS
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- ii -
EXHIBIT 10.9
Dated 13 October 2006
NUCLEAR ENERGY HOLDINGS, L.L.C.
(the Issuer)
and
THE BANK OF NEW YORK
(the Trustee)
and
THE BANK OF NEW YORK
(the Account Bank, Cash Manager, Principal Paying Agent and Calculation Agent)
and
MORGAN STANLEY CAPITAL SERVICES INC.
(the Swap Counterparty)
DEED OF CHARGE
Linklaters
Ref: 01/210/E.Hickman/ANXJ
Contents
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Clause
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Heading
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Page
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1
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Definitions and Interpretation
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1
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2
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Security Trust
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8
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3
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|
Creation of Security
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8
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4
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Restriction on Exercise of Certain Rights
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12
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5
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|
Release of Charged Property
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12
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6
|
|
Prior to service of a Bond Enforcement Notice
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12
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7
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Following Service of a Bond Enforcement Notice
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12
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8
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Acknowledgement of Secured Creditors
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12
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9
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The Trustees Powers
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12
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10
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Receiver
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12
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11
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Protection of Third Parties
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12
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12
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Protection of Trustee and Receiver
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12
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13
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Expenses and Indemnity
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12
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14
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Protection of Security
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12
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15
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Crystallisation
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12
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16
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Issuer Power of Attorney
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12
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17
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Other Security
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12
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18
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Avoidance of Payments
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12
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19
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Set-off
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12
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20
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Execution of Documents
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12
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21
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Exercise of Certain Rights
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12
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22
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Covenants, Representations and Warranties
|
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12
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23
|
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Additional Provisions Regarding the Trustee
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12
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24
|
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Further Provisions
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12
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25
|
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Governing Law and Jurisdiction
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12
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26
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Limited Recourse and Non Petition
|
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12
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i
THIS DEED OF CHARGE
is made on 13 October 2006
between
:
(1)
|
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NUCLEAR ENERGY HOLDINGS, L.L.C.
, a company with limited liability organised under the laws of
the State of Delaware, United States of America, whose registered office is c/o Corporation
Trust Center, 1209 Orange Street, Wilmington, Delaware 19801-1120 (the
Issuer
);
|
(2)
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THE BANK OF NEW YORK
, having its principal office at One Canada Square, London E14 5AL (in
its capacity as
Trustee
under the Bond Trust Deed and this Deed);
|
(3)
|
|
THE BANK OF NEW YORK
, having its principal office at One Canada Square, London E14 5AL (the
Account Bank
, the
Cash Manager
, the
Principal Paying Agent
and the
Calculation Agent
);
and
|
(4)
|
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MORGAN STANLEY CAPITAL SERVICES INC.
(the
Swap Counterparty
).
|
Background
:
(A)
|
|
This Deed secures and will secure the Issuer Obligations.
|
|
(B)
|
|
This Deed is supplemental to and should be read in conjunction with the Bond Trust Deed.
|
|
(C)
|
|
The Issuer will on the date of this Deed issue the Bonds.
|
|
(D)
|
|
By the Accounts Bank Agreement, the Account Bank has agreed to open and maintain certain
accounts in the name of the Issuer and to provide certain banking services to the Issuer and
the Trustee.
|
|
(E)
|
|
By the Cash Management Agreement, the Cash Manager has agreed to provide cash management
services to the Issuer and the Trustee.
|
|
(F)
|
|
By the Agency Agreement, the Principal Paying Agent has agreed to provide certain agency
services for the benefit of the Bondholders.
|
|
(G)
|
|
By the Swap Agreement, the Swap Counterparty has agreed to provide certain financial exchange
services (guaranteed by Morgan Stanley (the
Swap Guarantor
)) for the benefit of the
Bondholders.
|
This Deed witnesses
as follows:
1
|
|
Definitions and Interpretation
|
|
1.1
|
|
Definitions
|
|
|
|
The following expressions shall have the following meanings:
|
|
|
|
Accounts Bank Agreement
means the accounts bank agreement dated on or about the date
hereof between the Account Bank, the Issuer, the Cash Manager and the Trustee;
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|
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|
Acquisition Adjustment Amounts
has the meaning ascribed thereto in the Conditions;
|
|
|
|
Administrative Services Agreement
means the administrative services agreement dated on or
about the date hereof between the Issuer and the Servicer;
|
|
|
|
Agency Agreement
means the agency agreement dated on or about the date hereof between the
Issuer, the Trustee, the Principal Paying Agent, the Calculation Agent and the Cash Manager;
|
1
Bond Documents
mean all of the Transaction Documents other than the Shareholders
Agreements, the Investment Agreements and the Put Option Agreements;
Bond Enforcement Notice
means notice given by the Trustee to the Issuer, with a copy to
the Secured Creditors, to the effect that the Trustee will enforce the Security (or any part
thereof) pursuant to this Deed, the Parent Pledge or the Issuer Pledge Agreement (as the
case may be);
Bondholders
has the meaning ascribed thereto in the Bond Trust Deed;
Bonds
means the JPY50,980,000,000 fixed rate bearer bonds of the Issuer due 2013 and
JPY78,000,000,000 floating rate bearer bonds of the Issuer due 2013 both constituted under
the Bond Trust Deed;
Bond Trust Deed
means the bond trust deed dated on or about the date hereof between the
Trustee and the Issuer;
Business Day
means a day (other than Saturday and Sunday) on which commercial banks in
London and Tokyo are open for business;
Call Option
means the call option as described in the Shareholder Agreements;
Call Premium
has the meaning ascribed thereto in the Conditions;
Cash Collateral Account
means the JPY denominated bank account held by the Issuer with the
Account Bank into which cash collateral is posted by the Swap Counterparty under the Swap
Agreement;
Cash Management Agreement
means the cash management agreement dated on or about the date
hereof between the Issuer, the Cash Manager and the Trustee;
Charged Property
means collectively:
(a)
|
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the whole of the right, title, benefit and interest of the Issuer in the
property, assets and rights of the Issuer described in Clauses 3.1 to 3.6 (inclusive)
(
Creation of Security
) of this Deed;
|
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(b)
|
|
the whole of the right, title, benefit and interest of the Parent in the
membership interests of the Issuer described in the Parent Pledge Agreement;
|
|
(c)
|
|
the whole of the right, title, benefit and interest of the Issuer in the US
Shares described in the Issuer Pledge Agreement; and
|
|
(d)
|
|
all other property, assets and rights whatsoever of the Issuer and wheresoever
situate, present and future;
|
Collateral Accounts
means the Cash Collateral Account and the Custody Collateral Account;
Conditions
means the terms and conditions of the Bonds set out in Schedule 4 of the Bond
Trust Deed;
Custody Collateral Account
means the custody account held by the Issuer with the Account
Bank into which JGBs (as defined in the Swap Agreement) are posted by the Swap Counterparty
under the Swap Agreement;
Eligible Dividends
has the meaning ascribed thereto in the Conditions;
Eligible Investment
means:
2
(a) demand or time deposits, certificates of deposit and short-term debt obligations
(including commercial paper); provided that in all cases such investments will mature at
least one Business Day prior to the next following Interest Payment Date and the short-term
unsecured, unsubordinated and unguaranteed debt obligations of the issuing or guaranteeing
entity or the entity with which the demand or time deposits are made (being a bank or
licensed EU credit institution) are rated at least A-1+ by S&P F1+ by Moodys and
equivalent by R&I (or in the case of longer dated securities AAA by S&P, Aaa by Moodys and
equivalent by R&I) or are otherwise acceptable to Moodys and R&I; and
(b) a fund which is rated at least AAA by Moodys and equivalent by R&I;
in each case denominated and repayable in Japanese Yen, with maturity dates that are no
later than the next Interest Payment Date;
Event of Default
means the occurrence of any of the events set out in Condition 9 (
Events
of Default
);
Fixed Amounts
has the meaning ascribed thereto in the Swap Agreement;
HoldCo Shares
means, collectively, the UK Shares and the US Shares;
HoldCos
means, collectively, UK HoldCo and US HoldCo;
Interest Letter of Credit
means an irrevocable letter of credit dated on or about the date
hereof issued by the Interest Letter of Credit Bank (as defined therein) with respect to
payments of interest due on the Bonds and certain other amounts;
Interest Payment Date
has the meaning ascribed thereto in the Bond Trust Deed;
Issuer Accounts
means the Issuer Revenue Account, the Issuer UK Dividend Account, the
Issuer US Dividend Account (each as defined in the Accounts Bank Agreement) and the
Collateral Accounts and any other account or accounts held by the Issuer from time to time;
Issuer Obligations
means the aggregate of all monies and other liabilities whether actual
or contingent for the time being due or owing by the Issuer:
(a)
|
|
to or to the order of the Trustee and/or any receiver under the Deed of Charge,
the Bond Trust Deed and any other Bond Document at the times and in the manner provided
therein;
|
|
(b)
|
|
to the Agents under or in respect of the Agency Agreement and the Deed of
Charge;
|
|
(c)
|
|
to the Account Bank under or in respect of the Accounts Bank Agreement and the
Deed of Charge;
|
|
(d)
|
|
to the Cash Manager under or in respect of the Cash Management Agreement and
the Deed of Charge;
|
|
(e)
|
|
to the Bondholders under or in respect of the Bond Trust Deed; and
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(f)
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to the Swap Counterparty under or in respect of the Swap Agreement;
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Issuer Pledge Agreement
means a pledge by the Issuer of the US Shares in favour of the
Trustee dated on or about the date of this Deed;
3
Letter of Credit Bank
means the Interest Letter of Credit Bank, the Principal Letter of
Credit Bank or the Put Substitution Letter of Credit Bank;
Letters of Credit
means, collectively, the Interest Letter of Credit, the Principal Letter
of Credit and any Put Substitution Letter of Credit;
Liability
means any loss, damage, cost, charge, claim, demand, expense, judgement, decree,
action, proceeding, or other liability whatsoever (including, without limitation, in respect
of taxes, duties, levies and other charges) and including any value added tax or similar tax
charged or chargeable thereon and legal fees and expenses on a full indemnity basis;
LLC Agreement
means the LLC agreement dated on or about the date hereof in respect of the
Issuer;
Moodys
means Moodys Investor Services Inc.;
Offering Circular
means the offering circular dated 12 October 2006 in respect of the
Bonds;
Parent
means The Shaw Group Inc., a Louisiana corporation;
Parent Pledge Agreement
means a pledge by the Parent of its membership interests in the
Issuer in favour of the Trustee dated on or about the date of this Deed;
Potential Event of Default
means any condition, event or act which, with the lapse of time
and/or the issue, making or giving of any notice, certification, declaration, demand,
determination and/or request and/or the taking of any similar action and/or the fulfilment
of any similar condition, would, if not waived or remedied, constitute an Event of Default;
Pre-Enforcement Priority of Payments
means the following order of priority (and, in each
case, only if and to the extent that payments or provisions of a higher order of priority
have been made in full):
(a)
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first
,
pro rata
and
pari passu
, in or towards payment of all fees, costs,
charges, expenses, liabilities and all other amounts due and payable to the Trustee
under the Deed of Charge and under the Bond Trust Deed (including the Trustees
remuneration) which have not been paid by the Issuer;
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(b)
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second
,
pro rata
and
pari passu
in or towards payment of any amounts due and
payable to the Principal Paying Agent, the Paying Agents and the Calculation Agent
under the Agency Agreement, to the Account Bank under the Accounts Bank Agreement and
to the Cash Manager under the Cash Management Agreement;
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(c)
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third
,
pro rata
and
pari passu
, in or towards payment or discharge of any
amounts due to third parties (other than amounts described in items (a), (b), (d), (e),
(f), (g), (h) and (i)) under obligations incurred in the course of the Issuers
business (and only as permitted or contemplated by the terms of the Transaction
Documents), including payment of the Issuers liability (if any) to tax;
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(d)
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fourth
, in or towards payment of any Fixed Amounts due to the Swap Counterparty
under the Swap Agreement;
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(e)
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fifth
, in or towards payment of due but unpaid interest (including gross-up
payments to the Bondholders under Condition 8 (
Taxation
) and Default Interest) under
the Bonds;
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4
(f)
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sixth
, in or towards payment of the Principal Amount Outstanding under the
Bonds and any Call Premium;
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(g)
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seventh
, in or towards payment of any amounts due to the Swap Counterparty
under the Swap Agreement and which are not paid either under paragraph (d) above or
from the Swap Draw Amount (as defined below);
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(h)
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eighth
, to pay any amounts due to the Servicer under the Administrative
Services Agreement; and
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(i)
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ninth
, to pay the surplus (if any) to the Issuer.
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Principal Amount Outstanding
has the meaning ascribed thereto in the Bond Trust Deed;
Principal Letter of Credit
means a irrevocable letter of credit dated on or about the date
hereof issued by the Letter of Credit Bank with respect to payments of principal and certain
other amounts due on the Bonds;
Put Option Agreements
means, collectively, the UK Put Option Agreement and the US Put
Option Agreement;
Put Right
shall have the meaning ascribed to it in the UK Put Option Agreement and the US
Put Option Agreement;
Put Substitution Letter of Credit Bank
has the meaning ascribed thereto in the Bond Trust
Deed;
R&I
means Rating and Investment Information Inc.;
Rating Agencies
means R&I and Moodys;
Receiver
means any receiver or analogous officer (including an administrative receiver)
appointed by the Trustee under this Deed;
S&P
means Standard and Poors Rating Services, a division of the McGraw-Hill Companies,
Inc.;
Secured Creditors
means the Bondholders, the Trustee, the Swap Counterparty, the
Calculation Agent, the Account Bank, the Paying Agents and the Cash Manager;
Security
means the security created by the Issuer in favour of the Trustee by and pursuant
to this Deed, the Issuer Pledge Agreement and the Parent Pledge Agreement;
Security Interest
means any mortgage, standard security, pledge (including any pledge
operating by law), lien, charge, assignment, assignation, hypothecation or security interest
or other agreement or arrangement having the effect of conferring security;
Servicer
means The Shaw Group Inc. or any other replacement servicer of the Issuer
appointed pursuant to the Administrative Services Agreement;
Shareholders Agreements
means, collectively, the US Shareholder Agreement and the UK
Shareholder Agreement;
Subscription Agreement
means the subscription agreement dated on or about 10 October 2006
between the Issuer, the Parent and Morgan Stanley & Co. International Limited;
5
Swap Agreement
means the ISDA Master Agreement and the related schedule, confirmation and
credit support annex between the Issuer, the Swap Counterparty and the Swap Guarantor dated
on or about the date of this Deed;
Swap Guarantee
means the swap guarantee issued by the Swap Guarantor in favour of the
Issuer dated on or about the date of this Deed;
Taxes
means any or all present and future taxes, levies, imposts, duties, charges, fees,
deductions and withholdings imposed or required by any governmental, fiscal or other
competent authority in any jurisdiction (including, without limitation, any interest or
penalty payable in connection with any failure to pay or any delay in paying any of them)
and
Tax
shall be construed accordingly;
this Deed
means this Deed, its schedules, and any deed executed in accordance with, or
expressed to be supplemental to, this Deed;
Toshiba
means Toshiba Corporation, a company incorporated in Japan;
Transaction Documents
means each of the following documents:
(a)
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Accounts Bank Agreement
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(b)
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Agency Agreement
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(c)
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Bond Trust Deed
|
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(d)
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Cash Management Agreement
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(e)
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Deed of Charge
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(f)
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Interest Letter of Credit
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(g)
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Principal Letter of Credit
|
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(h)
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Put Substitution Letter of Credit, if any
|
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(i)
|
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UK Investment Agreement
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(j)
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US Investment Agreement
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(k)
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US Put Option Agreement
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(l)
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UK Put Option Agreement
|
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(m)
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LLC Agreement
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(n)
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UK Shareholders Agreement
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(o)
|
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US Shareholders Agreement
|
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(p)
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Administrative Services Agreement
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(q)
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Issuer Pledge Agreement
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(r)
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Parent Pledge Agreement
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(s)
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Swap Agreement
|
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(t)
|
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Swap Guarantee
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together with any other document designated as such by the Issuer and the Trustee;
UK HoldCo
means Toshiba Nuclear Energy Holdings (U.K.) Limited, a company incorporated in
England;
6
UK Investment Agreement
means the investment agreement between,
inter alia
, the Issuer and
UK Holdco dated 4 October 2006 whereby the Issuer will acquire the UK Shares.
UK Put Option Agreement
means the put option agreement dated on or about the date hereof
between the Issuer and Toshiba, whereby,
inter alia
, Toshiba grants the Issuer a Put Right
in respect of the UK Shares (as defined therein);
UK Shareholders Agreement
means the shareholders agreement dated on or about the date
hereof between Toshiba, the UK HoldCo, the Issuer and other shareholders of UK Holdco;
UK Shares
means 280 shares of Class A Stock of Toshiba Nuclear Energy Holdings (UK)
Limited;
US HoldCo
means Toshiba Nuclear Energy Holdings (US) Inc., a Delaware corporation;
US Investment Agreement
means the investment agreement between, inter alia, the Issuer and
US HoldCo dated 4 October 2006 whereby the Issuer will acquire the US Shares;
US Put Option Agreement
means the put option agreement dated on or about the date hereof
between the Issuer and Toshiba, whereby,
inter alia
, Toshiba grants the Issuer a Put Right
in respect of the US Shares (as defined therein);
US Shareholders Agreement
means the shareholders agreement dated on or about the date
hereof between Toshiba, the US HoldCo, the Issuer and other shareholders of US HoldCo;
US Shares
means 800 shares of Class A Stock of Toshiba Nuclear Energy Holdings (US) Inc.;
and
VAT
means value added tax and any other tax of a similar nature.
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(a)
|
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Words denoting the singular shall include the plural and vice versa.
|
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(b)
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Words denoting one gender only shall include the other genders.
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(c)
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Words denoting persons only shall include firms and corporations and vice
versa.
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(d)
|
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All references herein to a party shall be deemed to include references to its
successors and assigns and persons deriving title under or through them respectively.
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(e)
|
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All references herein to any statute or any provision of any statute shall be
deemed also to refer to any statutory modification or re-enactment thereof or any
statutory instrument, order or regulation made thereunder or under any such
modification or re-enactment.
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(f)
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All references herein to guarantees or to an obligation being guaranteed shall
be deemed to include respectively references to indemnities or to an indemnity being
given in respect thereof.
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(g)
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All references herein to any action, remedy or method of proceeding for the
enforcement of the rights of creditors shall be deemed to include, in respect of any
jurisdiction other than England, references to such action, remedy or method of
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7
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proceeding for the enforcement of the rights of creditors available or appropriate in
such jurisdiction as shall most nearly approximate to such action, remedy or method of
proceeding described or referred to in these presents.
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(h)
|
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All references herein to taking proceedings against the Issuer shall be deemed
to include references to proving in the winding up of the Issuer.
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(i)
|
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Unless the context otherwise requires, words or expressions used in these
presents shall bear the same meanings as in the Companies Act 1985 of Great Britain.
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(j)
|
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All references herein to Yen or to JPY shall be construed as references to
the lawful currency for the time being of Japan.
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(k)
|
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In this Deed, references to Schedules, Clauses, paragraphs and sub-paragraphs
shall be construed as references to the Schedules to this Deed and to the Clauses,
paragraphs and sub-paragraphs of this Deed respectively.
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(l)
|
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In this Deed, tables of contents and Clause headings are included for ease of
reference and shall not affect the construction hereof.
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2
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Security Trust
|
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2.1
|
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Appointment of Trustee
|
|
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Each of the Secured Creditors (other than the Trustee) appoints the Trustee to act as
trustee of all the covenants, undertakings and Security Interests made or given under this
Deed and the other Transaction Documents.
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2.2
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Declaration of Security Trust
|
|
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The Trustee shall hold all the covenants, undertakings, charges, assignments, Security
Interests and other rights and benefits made or given or to be made or given under or
pursuant to the terms of this Deed, the Bond Trust Deed and the other Transaction Documents
to which it is a party or which are granted in its favour on trust for the Secured Creditors
in respect of the Issuer Obligations owed to each of them respectively upon and subject to
the terms and conditions of this Deed and the Bond Trust Deed. For the avoidance of doubt,
the Trustee shall not be required to have regard to the interest of the Issuer in the
exercise or non-exercise of any such rights, powers, authorities, discretions and remedies
or to comply with any direction given by the Issuer in relation thereto. Furthermore, the
Trustee shall have regard to the interest of all the Bondholders equally as regards all
powers, trusts, authorities, duties and discretions of the Trustee. Except where expressly
provided otherwise, and except in respect of the Swap Counterparty, so long as any of the
Bonds remain outstanding, the Trustee is not required to have regard to the interests of any
other person entitled to the benefit of the Security.
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3
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|
Creation of Security
|
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3.1
|
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General
|
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(i)
|
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is created in favour of the Trustee;
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(ii)
|
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is created over the present and future assets of the Issuer;
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8
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(iii)
|
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is security for the payment or discharge of the Issuer Obligations; and
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(iv)
|
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is made with full title guarantee.
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(b)
|
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The term
all of its rights
as used in this Clause 3 includes, unless the
context requires otherwise:
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(i)
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the benefit of all covenants, undertakings, representations,
warranties and indemnities;
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(ii)
|
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all powers and remedies of enforcement and/or protection;
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(iii)
|
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all rights to receive payment of all amounts assured or
payable (or to become payable) and all rights to take such steps as are
required to cause payment to become due and payable; and
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(iv)
|
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all causes and rights of action,
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in each case, in respect of the relevant Charged Property.
3.2
|
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Contractual rights
|
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|
|
The Issuer, by way of first fixed security for the payment or discharge of the Issuer
Obligations, subject to Clause 5, HEREBY ASSIGNS (or, to the extent not assignable, charges)
by way of security to the Trustee all of its right, title, interest and benefit, present and
future, in, to and under the Bond Trust Deed, the Swap Agreement, the Cash Management
Agreement, the Agency Agreement and the Accounts Bank Agreement and all rights to receive
payment of any amounts which may become payable to the Issuer thereunder and all payments
received by the Issuer thereunder including, without limitation, all rights to serve notices
and/or make demands thereunder and/or to take such steps as are required to cause payments
to become due and payable thereunder and all rights of action in respect of any breach
thereof and all rights to receive damages or obtain other relief in respect thereof.
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3.3
|
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Issuer Accounts
|
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|
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The Issuer, by way of first fixed security for the payment or discharge of the Issuer
Obligations, subject to Clause 5, HEREBY CHARGES in favour of the Trustee all its right,
title, interest and benefit, present and future, in and to all moneys now or at any time
hereafter standing to the credit of the Issuer Accounts, together with all interest accruing
from time to time thereon and the debts represented thereby.
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3.4
|
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Eligible Investments
|
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|
|
The Issuer, by way of first fixed security for the payment or discharge of the Issuer
Obligations, subject to Clause 5, HEREBY CHARGES in favour of the Trustee all its right,
title, interest and benefit, present and future, in and to such Eligible Investments to be
made from time to time by or on behalf of the Issuer using moneys standing to the credit of
the Issuer Accounts and all moneys, income and proceeds payable thereunder or accrued
thereon and the benefit of all covenants relating thereto and all rights and remedies for
enforcing the same.
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3.5
|
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UK Shares
|
|
|
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The Issuer, by way of first fixed security for the payment or discharge of the Issuer
Obligations, subject to Clause 5, HEREBY CHARGES by way of a first fixed charge in favour of
the Trustee all its right, title, interest and benefit, present and future, in and to the
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9
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UK Shares and all dividends or any right, money, property accruing or offered at any time in
relation thereto by way of redemption, substitution, exchange, bonus or preference, under
option rights or otherwise, all covenants relating thereto and all rights and remedies for
enforcing the same.
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3.6
|
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Floating charge
|
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(a)
|
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The Issuer, by way of security for the payment or discharge of the Issuer
Obligations, subject to Clause 5, HEREBY CHARGES to the Trustee by way of first
floating charge the whole of its undertaking and all its property and assets whatsoever
and wheresoever, present and future other than any property or assets from time to time
or for the time being effectively charged or otherwise effectively assigned as security
by Clauses 3.2 to 3.5 (inclusive).
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(b)
|
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The floating charge created by paragraph (a) above may not be converted into a
fixed charge solely by reason of:
|
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(i)
|
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the obtaining of a moratorium; or
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(ii)
|
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anything done with a view to obtaining a moratorium,
|
under the Insolvency Act 2000.
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(c)
|
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The floating charge created by paragraph (a) above is a qualifying floating
charge for the purpose of paragraph 14 of Schedule B1 of the Insolvency Act 1986.
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3.7
|
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Acknowledgements and undertakings
|
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(a)
|
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The execution of this Deed by each of the Parties shall constitute:
|
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(i)
|
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notice to each of them of the assignment of all the Issuers
right, title, interest and benefit, present and future, in, to and under the
agreements referred to in Clause 3.2; and
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(ii)
|
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an express acknowledgement by each of them of such assignments,
charges and other Security Interests made or granted by the foregoing
provisions of this Clause 3.
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(b)
|
|
Each of the Secured Creditors (other than the Trustee) undertakes to the
Trustee not to do anything inconsistent with the Security or anything otherwise
inconsistent with the terms of this Deed, or the Transaction Documents or to knowingly
prejudice the security granted to the Trustee pursuant to this Clause 3 or the Charged
Property or the Trustees interest therein provided that, without prejudice to Clause
21, nothing herein shall be construed as limiting the rights exercisable by the
aforesaid parties in accordance with the terms of their respective agreements with the
Issuer.
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(c)
|
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Each of the Secured Creditors shall be bound by, and deemed to have notice of,
all of the provisions of the Transaction Documents as if they were parties to each
Transaction Document.
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3.8
|
|
Trustee
|
|
|
|
Notwithstanding anything else in this Deed, it is hereby agreed that the Trustee does not
assume, nor shall the Trustee be obliged to perform, any obligations of any other Party and
nothing herein shall be construed so as to transfer any such obligations to the Trustee.
|
10
3.9
|
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Exercise of certain discretions
|
|
|
|
Without prejudice to the rights of the Trustee after the Security has become enforceable,
the Issuer hereby authorises the Trustee to exercise, or refrain from exercising, all its
rights, powers, authorities, discretions and remedies under or in respect of the agreements
referred to in Clause 3.2 in such manner as in its absolute discretion it shall think fit.
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3.10
|
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Ineffective Security
|
|
|
|
If, for any reason, the purported assignment or charge by way of security of any of the
Charged Property is found to be ineffective, the Issuer will hold the benefit of such
Charged Property and any sums received in respect of such Charged Property or any Security
Interest, guarantee or indemnity or undertaking of whatever nature given to secure the
Charged Property on trust for the Trustee until such time as the Issuer Obligations are
fully paid and discharged and will (a) account to the Trustee for or otherwise apply all
such sums as the Trustee may direct, (b) exercise any rights it may have in respect of the
Charged Property at the direction of the Trustee and (c) at its own cost take such action
and execute such documents in connection with the foregoing as the Trustee may in its sole
discretion require.
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3.11
|
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Continuing security
|
|
|
|
Without prejudice to the generality of Clauses 3.2, 3.3, 3.4 and 3.6, the security contained
in or granted pursuant to this Deed shall remain in force as continuing security for the
Issuer Obligations notwithstanding any settlement of account or the existence at any time of
a credit balance on any current or other account or any other act, event or matter
whatsoever.
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3.12
|
|
Provisions with respect to the Issuer Accounts
|
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(a)
|
|
The Issuer Accounts must be maintained at a branch of the Account Bank approved
by the Trustee. The initial Account Bank is The Bank of New York.
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(b)
|
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The Account Bank may be changed to another bank or financial institution if the
Trustee so requires.
|
|
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(c)
|
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A change of Account Bank only becomes effective when the proposed new Account
Bank agrees with the Trustee and the Issuer, in a manner satisfactory to the Trustee,
to fulfil the role of the Account Bank under this Deed.
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(d)
|
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If there is a change of Account Bank, the amount (if any) standing to the
credit of the Issuer Accounts maintained with the old Account Bank shall be transferred
to the corresponding Issuer Accounts maintained with the new Account Bank immediately
upon appointment of the new Account Bank taking effect.
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(e)
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The Issuer shall take any action which the Trustee may require to facilitate a
change of Account Bank and any transfer of credit balances (including the execution of
bank mandate forms) to a new Account Bank.
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3.13
Provisions with respect UK Shares and Eligible Investments
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(a)
|
|
The Issuer shall pay for all calls and other payments (if any) due and payable
in respect of the UK Shares or any Eligible Investment.
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(b)
|
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The Issuer shall promptly copy to the Trustee and comply with all requests for
information which is within its knowledge and which are made under section 212 of
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11
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|
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the Companies Act 1985 or any similar provision contained in any articles of association or
other constitutional document relating to the UK Shares or, to the extent applicable,
any Eligible Investment.
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(c)
|
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The Issuer shall comply with all conditions and obligations assumed by it in
respect of any Eligible Investments.
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(d)
|
|
Prior to the delivery of a Bond Enforcement Notice:
|
|
(i)
|
|
the voting rights, powers and other rights in respect of the UK
Shares and, to the extent applicable, the Eligible Investments shall (if
exercisable by the Trustee) be exercised in any manner which the Issuer may
direct in writing; and
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(ii)
|
|
all dividends or other income paid or payable in relation to
the UK Shares and, to the extent applicable, any Eligible Investments shall be
paid directly to the Issuer.
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(e)
|
|
After the delivery of a Bond Enforcement Notice, the Trustee may exercise (in
the name of the Trustee and without any further consent or authority on the part of the
Issuer) any voting rights and any powers or rights which may be exercised by the legal
or beneficial owner of the UK Shares or any Eligible Investment, any person who is the
holder of the UK Shares or any Eligible Investment or otherwise.
|
4
|
|
Restriction on Exercise of Certain Rights
|
|
4.1
|
|
Payments to Issuer Accounts
|
|
|
|
At all times prior to the release, re-assignment and/or discharge under Clause 5 of the
Security, the Issuer will, save as otherwise provided in the Transaction Documents or unless
the Trustee otherwise agrees in writing, procure that all amounts received by the Issuer
under or in respect of the Transaction Documents will be credited to the Issuer Accounts in
accordance with the terms of the Transaction Documents.
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4.2
|
|
No withdrawal from the Issuer Accounts
|
|
|
|
At all times during the subsistence of the Security, the Issuer shall not be entitled to
withdraw or transfer from the Issuer Accounts any monies or securities standing to the
credit thereof or direct any payment to be made therefrom to any person save to the extent
expressly permitted under the Transaction Documents, without the Trustees prior written
consent.
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5
|
|
Release of Charged Property
|
|
5.1
|
|
Upon proof being given to the satisfaction of the Trustee of the irrevocable and
unconditional payment or discharge by the Issuer of all the Issuer Obligations, the Trustee
shall, at the request and cost of the Issuer, release, reassign or discharge the Charged
Property to, or to the order of, the Issuer.
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5.2
|
|
Upon the Issuer (or the Cash Manager on its behalf) making a disposal of an
Eligible Investment charged pursuant to Clause 3.4, the Trustee shall, if so requested in
writing by and at the sole cost and expense of the Issuer, but without being responsible for
any Liability whatsoever occasioned by so acting upon such written request, release, reassign
or discharge from the Security Interests constituted by or pursuant to this Deed the relevant
Charged Property to the Issuer or to the order of the Issuer provided that the
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12
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|
proceeds of
such disposal are paid into an account charged pursuant to Clause 3.3 in accordance with the
relevant provisions of the Cash Management Agreement.
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|
5.3
|
|
From time to time, for the avoidance of doubt, there shall be deemed to be released
from the Security Interests constituted by this Deed all amounts which the Issuer (in respect
of the Dividend Accounts but only in accordance with Condition 4) and the Cash Manager on
behalf of the Issuer (in respect of all Issuer Accounts), is permitted to withdraw from the
Issuer Accounts, any such release to take effect immediately upon the relevant withdrawal
being made provided that where the relevant amount is transferred to another Issuer Account,
it shall thereupon become subject to the Security Interests constituted by this Deed in
respect of such Issuer Account.
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5.4
|
|
The Secured Creditors authorise the Trustee to release or reassign (as the case may
be) on their behalf any charge created over any Eligible Investment or any assignment of a
buy/sell back agreement or repurchase agreement under this Deed in order to allow the Cash
Manager to liquidate the Eligible Investments free of any Security Interests.
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6
|
|
Prior to service of a Bond Enforcement Notice
|
|
6.1
|
|
Application
|
|
|
|
No payment, transfer or withdrawal from any of the Issuer Accounts may be made under this
Clause 6 at any time after a Bond Enforcement Notice has been served except with the prior
written consent of the Trustee.
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6.2
|
|
Priority of payments prior to service of a Bond Enforcement Notice
|
|
|
|
Notwithstanding the Security Interests created by or pursuant to Clause 3, and provided that
no Bond Enforcement Notice has been served and the Trustee has not taken any steps to
enforce the Security, the Cash Manager (on behalf of the Issuer and the Trustee) shall apply
all of the Issuers funds (except (i) any amounts and JGBs posted as collateral under the
Swap Agreement and standing to the credit of the Collateral Accounts (ii) Eligible Dividends
and (iii) other than on the date on which the Bonds are redeemable, Acquisition Adjustment
Amounts) in accordance with the Pre-Enforcement Priority of Payments and shall instruct the
Account Bank, or cause the Account Bank to be instructed, to withdraw (unless the intended
recipient of the relevant payment agrees otherwise) monies from the Issuer Accounts to be
applied in accordance with the Pre-Enforcement Priority of Payments.
|
|
|
|
The Interest Letter of Credit shall be drawn for an amount equal to all payments outlined in
paragraphs (a), (b), (c), (d), (e) and (h) of the Pre-Enforcement Priority of Payments (the
Pre-Enforcement Permitted Expenses Draw Amount
). Any such Pre-Enforcement Permitted
Expenses Draw Amount shall form part of the funds of the Issuer to be applied in accordance
with the Pre-Enforcement Priority of Payments.
|
|
|
|
After the Pre-Enforcement Permitted Expenses Draw Amount has been drawn, separately, the
Interest Letter of Credit shall be drawn for an amount equal to the Swap Termination Payment
due from the Issuer to the Swap Counterparty (if any) and gross-up payments due to the Swap
Counterparty under Section 2(d) of the Swap Agreement (if any) (the
Swap Draw Amount
), and
such amount shall be paid to the Swap Counterparty. Any such Swap Draw Amount shall not form
part of the funds of the Issuer to be applied in accordance with the Pre-Enforcement
Priority of Payments.
|
13
|
|
Eligible Dividends (as defined in the Conditions) shall not form a part of the funds of the
Issuer to be applied in accordance with the Pre-Enforcement Priority of Payments. Provided
no Bond Enforcement Notice has been served, Eligible Dividends may be distributed to the
Parent. Acquisition Adjustment Amounts shall remain in the Issuer Revenue Account until such
date on which the Bonds are redeemable in full, whereupon such amounts shall be applied in
accordance with the Pre-Enforcement Priority of Payments or, after a Bond Enforcement Notice
is served by the Trustee, whereupon such amounts shall be applied in accordance with the
Post-Enforcement Priority of Payments.
|
|
6.3
|
|
Eligible Investments
|
|
|
|
Notwithstanding the Security Interests created by or pursuant to Clause 3, Eligible
Investments may, on any Business Day, be sold or redeemed or disposed of or realised or
otherwise deposited subject always to the other provisions of this Deed (including without
limitation Clause 3.3) and to the provisions of Clause 5 (
Investments
) of Schedule 1 of the
Cash Management Agreement.
|
|
6.4
|
|
VAT
|
|
|
|
If any sums which are payable by the Issuer under Clauses 6.2 or 7.2 are subject to VAT, the
Issuer shall make payment of the amount in respect of VAT against production of a valid VAT
invoice to the relevant person in accordance with the order of priorities set out in those
Clauses.
|
|
6.5
|
|
Management and Application of Funds
|
|
|
|
The Issuer shall take or cause to be taken such action as may from time to time be necessary
on its part to ensure that the relevant Issuer Accounts (as applicable, excluding the
Collateral Accounts) shall from time to time be credited with all amounts received by the
Issuer, including, without limitation, amounts falling within any of the following
categories (but excluding cash collateral and JGBs governed by Clause 6.6):
|
|
(a)
|
|
dividends or other amounts received by the Issuer from the HoldCos;
|
|
|
(b)
|
|
amounts received by the Issuer from Toshiba or other stockholders of US HoldCo
or UK HoldCo under the Investment Agreements, the Put Option Agreements or the
Shareholders Agreements, as applicable;
|
|
|
(c)
|
|
interest received on the Issuer Accounts;
|
|
|
(d)
|
|
the proceeds arising from the disposal of any Eligible Investments and any and
all income or other distributions received by the Issuer in respect thereof or arising
from the proceeds of any Eligible Investments;
|
|
|
(e)
|
|
amounts drawn under the Letters of Credit; and
|
|
|
(f)
|
|
such other payments received by the Issuer as are, or ought in accordance with
this Deed to be, comprised in the Charged Property and which are not otherwise paid
into the Issuer Accounts.
|
The Collateral Accounts are established and may only be used for the following purposes:
On any Business Day (as defined in the Conditions):
14
|
(i)
|
|
the deposit of any cash collateral and/or JGBs (as defined in
the Swap Agreement) received from the Swap Counterparty under the Swap
Agreement (in an amount notified to the Cash Manager and Trustee 1 Business Day
prior to such deposit); and
|
|
|
(ii)
|
|
interest on the Collateral Accounts and interest under the JGBs.
|
On any Business Day:
|
(i)
|
|
to the Swap Counterparty, cash collateral and/or JGBs (in an
amount notified at least three Business Days prior to the requested date for
payment and/or transfer to the Cash Manager by the Swap Counterparty) required
to be repaid under the Swap Agreement; and
|
|
|
(ii)
|
|
following the termination of the Swap Agreement, to the Issuer
Revenue Account, all amounts standing to the credit of the Collateral Accounts
which are not required to be paid to the Swap Counterparty under paragraph (i)
above.
|
7
|
|
Following Service of a Bond Enforcement Notice
|
7.1
|
|
Bond Enforcement Notice
|
|
|
|
From and including the time when the Trustee serves a Bond Enforcement Notice on the
Issuer:
|
|
(a)
|
|
no amount may be withdrawn from the Issuer Accounts without the prior written
consent of the Trustee; and
|
|
|
(b)
|
|
if not already crystallised, any charge created under or pursuant to this Deed,
which is a floating charge, shall immediately and without further action on the part of
the Trustee, crystallise and become a fixed charge.
|
7.2
|
|
Priority of payments upon service of a Bond Enforcement Notice
|
|
|
|
Upon and after the service of a Bond Enforcement Notice, all funds (except any Return
Amounts payable to the Swap Counterparty and standing to the credit of the Collateral
Accounts) received by the Issuer or recovered by or on behalf of the Trustee or any Receiver
for the benefit of the Secured Creditors (including funds recovered as a result of
enforcement of the Security, Acquisition Adjustment Amounts and Eligible Dividends) shall be
held by the Trustee on trust to be applied in the following order of priority (the
Post-Enforcement Priority of Payment
) (and, in each case, only if and to the extent that
payments or provisions of a higher order of priority have been made in full):
|
|
(a)
|
|
first
,
pro rata
and
pari passu
, in or towards payment of all fees, costs,
charges, expenses, liabilities and all other amounts due and payable to the Trustee
under the Deed of Charge and under the Bond Trust Deed or any receiver appointed by the
Trustee (including any taxes required to be paid, the costs of realising any Security
and the Trustees remuneration) which have not been paid by the Issuer;
|
|
|
(b)
|
|
second, pro rata and pari passu
in or towards payment of any amounts due and
payable to the Principal Paying Agent, the Paying Agents and the Calculation Agent
under the Agency Agreement, to the Account Bank under the Accounts Bank Agreement and
to the Cash Manager under the Cash Management Agreement;
|
15
|
(c)
|
|
third
, in or towards payment of any Fixed Amounts due to the Swap Counterparty
under the Swap Agreement;
|
|
|
(d)
|
|
fourth
, in or towards payment of due but unpaid interest under the Bonds
(including gross-up payments to the Bondholders under Condition 8
(Taxation)
and
Default Interest);
|
|
|
(e)
|
|
fifth
, in or towards payment of the Principal Amount Outstanding under the
Bonds and any Call Premium;
|
|
|
(f)
|
|
sixth
, in or towards payment of any amounts due to the Swap Counterparty under
the Swap Agreement and which are not paid either under paragraph (c) above or from the
Swap Draw Amount;
|
|
|
(g)
|
|
seventh
, to pay any amounts due to the Servicer under the Administrative
Services Agreement; and
|
|
|
(h)
|
|
eighth
, to pay the surplus (if any) to the Issuer.
|
The Interest Letter of Credit shall be drawn for an amount equal to all payments outlined in
paragraphs (a), (b), (c), (d) and (g) of the Post-Enforcement Priority of Payments above
(the
Post-Enforcement Permitted Expenses Draw Amount
). Any such Post-Enforcement Permitted
Expenses Draw Amount shall form part of the funds of the Issuer to be applied in accordance
with the Post-Enforcement Priority of Payments.
After the Post-Enforcement Permitted Expenses Draw Amount is drawn, separately, from any
remaining amounts available to be drawn under the Interest Letter of Credit, an amount equal
to the Swap Draw Amount (if any) shall be drawn and paid to the Swap Counterparty. Any such
Swap Draw Amount shall not form part of the funds of the Issuer to be applied in accordance
with the Post-Enforcement Priority of Payments.
Eligible Dividends and Acquisition Adjustment Amounts shall form part of the funds of the
Issuer to be applied in accordance with the Post-Enforcement Priority of Payments.
Upon an Event of Default and/or Termination Event occurring (each term as defined in the
Swap Agreement) in respect of the Issuer, the Trustee shall, but without any liability,
personal or otherwise, in respect thereof to the Swap Counterparty or any other person,
direct the Cash Manager to pay, as soon as reasonably practicable, any Return Amount (as
such term is defined in the Credit Support Annex attached to the Swap Agreement) to the Swap
Counterparty (the
Return Amount
) out of the amounts and JGBs posted as collateral (the
Posted Collateral
) under the Swap Agreement. The Swap Counterparty agrees that it shall
give 5 clear Business Days notice to the Trustee and Cash Manager of the quantum of the
Return Amount and such information to the Trustee and Cash Managers satisfaction concerning
the account to which the Return Amount shall be remitted. The Issuer undertakes (i) to
deposit all Posted Collateral into the relevant Collateral Account and (ii) to only pay out
amounts standing to the credit of the Collateral Accounts in respect of Posted Collateral,
either to pay the Return Amount payable to the Swap Counterparty when due or to transfer the
Posted Collateral less the Return Amount to the Issuer Revenue Account following any
termination of the Swap Agreement. For the avoidance of doubt, nothing in this Clause 7.2 is
intended to, nor shall, create a trust. The parties agree that the Trustee and the Cash
Manager shall be entitled to deduct any direct or indirect costs and expenses they incur in
carrying out the actions described in this paragraph. In their sole discretion, the Trustee
and Cash Manager shall be entitled to
16
require satisfactory indemnity and/or security before
they carry out any action contemplated in this paragraph.
8
|
|
Acknowledgement of Secured Creditors
|
|
8.1
|
|
Each of the Secured Creditors (other than the Trustee and the Bondholders) hereby
acknowledges and concurs with all the provisions of the Bond Trust Deed and acknowledges that
the Trustee shall not have regard to the interests of the other Secured Creditors and each of
them agrees that it shall have no claim against the Trustee as a result of the application
thereof.
|
|
8.2
|
|
Without prejudice to Clause 8.1 above, the Issuer hereby gives notice to each of
the other parties to this Deed, and each of the parties to this Deed (other than the Issuer)
acknowledges receipt of such notice, that the Issuer has made the assignment to the Trustee
pursuant to Clause 3.2 and in accordance with the terms hereof.
|
|
8.3
|
|
Each of the Secured Creditors (other than the Bondholders) hereby acknowledges that
no amendment may be made to a Transaction Document without the consent of all parties to such
Transaction Document unless the Trustee is of the opinion that such modification is of a
formal, minor or technical nature or, is to correct a manifest error.
|
|
9
|
|
The Trustees Powers
|
|
9.1
|
|
Enforceability and Bond Enforcement Notice
|
|
(a)
|
|
The security created under and pursuant to this Deed shall become immediately
enforceable and the power of sale and other powers conferred by section 101 of the Law
of Property Act 1925 (the
1925 Act
), as varied or amended by this Deed, shall be
exercisable by the Trustee forthwith upon the occurrence of an Event of Default.
|
|
|
(b)
|
|
The Trustee will as soon as practicable notify each Secured Creditor of any
enforcement of the Security.
|
|
|
(c)
|
|
Without prejudice to the effectiveness of any service of a Bond Enforcement
Notice by the Trustee in accordance with Condition 9 (
Events of Default
), the Issuer
shall provide copies of any Bond Enforcement Notice to each Secured Creditor.
|
9.2
|
|
Amounts due
|
|
|
|
The Issuer Obligations shall become due for the purposes of section 101 of the 1925 Act and
the statutory power of sale and of appointing a Receiver which are conferred on the Trustee
under the 1925 Act (as varied or extended by this Deed) and all other powers shall be deemed
to arise immediately after execution of this Deed.
|
|
9.3
|
|
Power of sale
|
|
|
|
Section 103 of the Law of Property Act 1925 Act shall not apply in relation to any of the
charges contained in this Deed and the statutory power of sale (as extended by this Deed)
and all other powers shall be exercisable at any time after the occurrence of an Event of
Default.
|
17
9.4
|
|
Extension of Law of Property Act 1925
|
The provisions of the 1925 Act (to the extent applicable) relating to the power of sale and
the other powers conferred by sections 101(1) and (2) are hereby extended in relation to the
Issuer (as if such extensions were contained therein) to authorise the Trustee, and the
Trustee is hereby authorised, at its absolute discretion at any time following the
occurrence of an Event of Default and subject to the Trustee being satisfied as to the
indemnification available to it in relation to the exercise of such powers:
|
(a)
|
|
to make demands in the name of the Secured Creditors or in its own right for
any moneys and liabilities in respect of the Charged Property;
|
|
|
(b)
|
|
to sell, transfer, convey, vary or otherwise dispose of the Issuers title to
or interest in the Charged Property, and to do so for any shares, debentures or other
securities whatsoever, or in consideration of an agreement to pay all or part of the
purchase price at a later date or dates, or an agreement to make periodical payments,
whether or not the agreement is subject to a Security Interest or a guarantee, or for
such other consideration whatsoever as the Trustee may think fit, and also to grant any
option to purchase, and to effect exchanges of, any of the Charged Property;
|
|
|
(c)
|
|
with a view to, or in connection with, selling the Charged Property (or
offering it for sale) to repair, replace and develop the Charged Property and to apply
for any appropriate permission, licence, registration or approval;
|
|
|
(d)
|
|
to sever any fixtures and to sell them apart from the land or buildings on or
to which they are affixed, and also to apportion any rent affecting the property sold,
to charge such rent upon the property sold or retained and to agree to indemnify by any
means any purchaser in respect of such rent or any covenants or undertakings, or to
take an indemnity or reserve powers of entry in respect of the property sold or
retained;
|
|
|
(e)
|
|
with a view to or in connection with the sale of the Charged Property, to carry
out any transaction, scheme or arrangement which the Trustee may, in its absolute
discretion, consider appropriate;
|
|
|
(f)
|
|
to insure the Charged Property against such risks and for such amounts as the
Trustee may consider prudent; and
|
|
|
(g)
|
|
to do all or any of the things or exercise all or any of the powers which are
mentioned or referred to in Clause 10.6 as if each of them was expressly conferred on
the Trustee by this Deed and which may not be included in paragraphs (a) to (f) above.
|
9.5
Additional powers
The Trustee shall have the power to insure against any liabilities or obligations arising:
|
(a)
|
|
as a result of the Trustee acting or
failing to act in a certain way (other
than as provided in Clause 17 of the Bond Trust Deed);
|
|
|
(b)
|
|
as a result of any act or failure to act by the Receiver or any person or
persons to whom the Trustee has delegated any of its trusts, rights, powers, duties,
authorities or discretions, or appointed as its agent;
|
|
|
(c)
|
|
in connection with the Charged Property; or
|
|
|
(d)
|
|
in connection with or arising from the enforcement of the Security.
|
18
|
|
The Trustee shall not be under any obligation to insure in respect of such liabilities
and/or obligations, but to the extent that it does so, the Issuer shall on written request
pay all insurance premiums and expenses which the Trustee may properly incur in relation to
such insurance. If the Issuer fails to reimburse the Trustee, the Trustee shall be entitled
to be indemnified out of the Charged Property in respect thereof, and in the case of a Bond
Enforcement Notice having been served, the indemnification of all such insurance premiums
and expenses shall be payable in priority to payments to the Bondholders and all other
Secured Creditors and otherwise in accordance with this Deed.
|
|
9.6
|
|
The Trustee may at any time after the occurrence of an Event of Default apply to a
court of competent jurisdiction (the
Court
) for an order that the powers and trusts of this
Deed be exercised or carried into execution under the direction of the Court and for the
appointment of a Receiver of the Charged Property or any part thereof and for any other order
in relation to the execution and administration of the powers and trusts hereof as the Trustee
shall deem expedient, and it may assent to or approve any application to the Court made at the
instance of any of the Bondholders.
|
|
9.7
|
|
If, after the service of a Bond Enforcement Notice, the amount of the moneys at any
time available for payment of principal and interest in respect of any class of Bonds under
Clause 7.2 shall be less than one-tenth of the Principal Amount Outstanding of all the Bonds
of the relevant class then outstanding, the Trustee may, at its absolute discretion and
without incurring any liability therefor, invest such moneys in any investments for the time
being authorised by English law for the investment by trustees of trust monies or in any other
investments which may be selected by the Trustee or by placing the same on deposit in the name
or under the control of the Trustee with such bank or financial institution as the Trustee may
think fit. The Trustee may at any time vary or transfer any of such investments for or into
other such investments or convert any monies into any other currency as the Trustee at its
absolute discretion may determine; and such investments or deposits with the resulting income
thereof may be accumulated until the accumulations, together with any other funds for the time
being under the control of the Trustee and applicable for the purpose, shall amount to a sum
equal to at least one-tenth of the Principal Amount Outstanding of all the Bonds then
outstanding and such accumulations and funds shall then be applied in accordance with Clause
7.2.
|
|
10
|
|
Receiver
|
|
10.1
|
|
Appointment
|
|
|
|
At any time following occurrence of an Event of Default, the Trustee may, at its absolute
discretion, appoint, by writing or by deed, such person or persons (including an officer or
officers of the Trustee) as the Trustee thinks fit, to be Receiver, of the Charged Property
or any part thereof and, in the case of an appointment of more than one person, to act
together or independently of the other or others.
|
|
10.2
|
|
Removal and replacement
|
|
|
|
Except as otherwise required by statute, the Trustee may by writing or by deed remove a
Receiver and appoint another in his place or to act with a Receiver and the Trustee may
apply to the court for an order removing an administrative receiver.
|
19
10.3
|
|
Extent of appointment
|
|
|
|
The exclusion of any part of the Charged Property from the appointment of the Receiver shall
not preclude the Trustee from subsequently extending his or their appointment (or that of
the Receiver replacing him or them) to that part of the Charged Property or appointing
another Receiver over any other part of the Charged Property.
|
|
10.4
|
|
Agent of the Issuer
|
|
|
|
The Receiver shall be the agent of the Issuer and the Issuer alone shall be responsible for
the Receivers contracts, engagements, acts, omissions, misconduct, negligence or default
and for liabilities incurred by him and in no circumstances whatsoever shall the Trustee be
in any way responsible for or incur any liability in connection with his contracts,
engagements, acts, omissions, misconduct, negligence or default, and if a liquidator of the
Issuer shall be appointed, the Receiver shall act as principal and not as agent for the
Trustee.
|
|
10.5
|
|
Remuneration
|
|
|
|
The remuneration of the Receiver shall be fixed by the Trustee and may be or include a
commission calculated by reference to the gross amount of all moneys received or otherwise
and may include remuneration in connection with claims, actions or proceedings made or
brought against the Receiver by the Issuer or any other person or the performance or
discharge of any obligation imposed upon him by statute or otherwise, but subject to Clause
7.2 (as applicable), such remuneration shall be payable hereunder by the Issuer alone. The
amount of such remuneration shall be paid in accordance with the terms and conditions and in
the manner agreed from time to time between the Receiver and the Trustee.
|
|
10.6
|
|
Powers
|
|
|
|
The Receiver, in addition to any powers conferred on a receiver by statute or common law,
shall have the following powers:
|
|
(a)
|
|
to enter upon, take possession of, get in and collect the Charged Property (or
such part thereof in respect of which he may be appointed) or any part thereof
including income whether accrued before or after the date of his appointment;
|
|
|
(b)
|
|
to sell, exchange, license, surrender, release, disclaim, abandon, return or
otherwise dispose of or in any way whatsoever deal with the Charged Property or any
interest in the Charged Property or any part thereof for such consideration (if any)
and upon such terms (including by deferred payment or payment by instalments) as he may
think fit and to concur in any such transaction;
|
|
|
(c)
|
|
to sell or concur in selling the whole or any part of the Issuers business
whether as a going concern or otherwise;
|
|
|
(d)
|
|
in connection with the exercise or the proposed exercise of any of his powers
or in order to obtain payment of his remuneration (whether or not it is already
payable), to borrow or raise money from any person without security or on the security
of any of the Charged Property and generally in such manner and on such terms as he may
think fit;
|
|
|
(e)
|
|
to bring, defend, submit to arbitration, negotiate, compromise, abandon and
settle any claims, disputes and proceedings concerning the Charged Property or any part
thereof;
|
20
|
(f)
|
|
to transfer all or any of the Charged Property and/or any of the liabilities of
the Issuer to any other company or body corporate, whether or not formed or acquired
for the purpose and to form a subsidiary or subsidiaries of the Issuer;
|
|
|
(g)
|
|
to redeem, discharge or compromise any Security Interests from time to time
having priority to or ranking
pari passu
with this Deed;
|
|
|
(h)
|
|
to effect or maintain indemnity insurance and other insurance and obtain bonds
and performance guarantees;
|
|
|
(i)
|
|
in connection with the exercise of any of his powers, to execute or do, or
cause or authorise to be executed or done, on behalf of or in the name of the Issuer or
otherwise, as he may think fit, all documents, receipts, registrations, acts or things
which he may consider appropriate;
|
|
|
(j)
|
|
to exercise any powers, discretions, voting, conversion or other rights or
entitlements in relation to any of the Charged Property or incidental to the ownership
of or rights in or to any of the Charged Property and to complete or effect any
transaction entered into by the Issuer and complete, disclaim, abandon or modify all or
any of the outstanding contracts or arrangements of the Issuer relating to or affecting
the Charged Property;
|
|
|
(k)
|
|
to exercise all powers (as applicable) as are described in Schedule 1 to the
Insolvency Act 1986, whether or not the Receiver is an administrative receiver as
defined in that Act;
|
|
|
(l)
|
|
to delegate its powers by way of power of attorney or in any other manner to
any person any right, power or discretion exercisable by it under this Deed on the
terms (including the power to sub-delegate) and subject to any regulations which such
Receiver may think fit and such Receiver shall not be liable or responsible in any way
to the Issuer or the Trustee for any loss or liability arising from any act, default,
omission or misconduct on the part of any such delegate or sub-delegate;
|
|
|
(m)
|
|
generally to carry out, or cause or authorise to be carried out, any
transaction, scheme or arrangement whatsoever, whether similar or not to any of the
foregoing, in relation to the Charged Property which he may consider expedient as
effectually as if he were solely and absolutely entitled to the Charged Property;
|
(n)
|
(i)
|
|
to do all other acts and things which he may consider desirable or
necessary for realising any Charged Property or incidental or conducive to any of the
rights, powers or discretions conferred on a Receiver under or by virtue of this Deed;
and
|
|
|
(ii)
|
|
to exercise in relation to any Charged Property all the powers,
authorities and things which he would be capable of exercising if he were the
absolute beneficial owner of the same,
|
|
|
|
and may use the name of the Issuer for any of the above purposes; and
|
|
|
(o)
|
|
to pay and discharge out of the profits, dividends and income of the relevant
Charged Property and the moneys to be made by it in carrying on the business of the
Issuer the expenses incurred in and about the carrying on and management of the
business or in the exercise of any of the powers conferred by this Clause 10.6 or
otherwise in respect of such Charged Property and all outgoings which it shall
|
21
|
|
|
think fit to pay and to apply the residue of the said profits, income or moneys in
the manner provided by Clause 7.2.
|
|
|
The Trustee may pay over to the Receiver any moneys constituting part of the Charged
Property to the extent that the same may be applied for the purposes referred to in Clause
7.2 (as applicable) by such Receiver and the Trustee may from time to time determine what
funds the Receiver shall be at liberty to keep in hand with a view to the performance of his
duties as such Receiver.
|
|
11
|
|
Protection of Third Parties
|
|
11.1
|
|
Enquiry
|
|
|
|
No person (including a purchaser) dealing with the Trustee or any Receiver or its or his
agents will be concerned to enquire:
|
|
(a)
|
|
whether any power which the Trustee or a Receiver is purporting to exercise has
become exercisable or is being properly exercised;
|
|
|
(b)
|
|
whether the Issuer Obligations remain outstanding or have become payable;
|
|
|
(c)
|
|
whether any money remains due under the Transaction Documents; or
|
|
|
(d)
|
|
how any money paid to the Trustee or to that Receiver is to be applied, and
|
|
|
the protections afforded to purchasers from a mortgagee by sections 104 to 107 of the 1925
Act and to persons dealing with an administrative receiver by section 42(3) of the
Insolvency Act 1986 will apply.
|
|
11.2
|
|
Receipts
|
|
|
|
The receipt of the Trustee or the Receiver shall be an absolute and a conclusive discharge
to a purchaser and shall relieve him of any obligation to see to the application of any
moneys paid to or by the direction of the Trustee or the Receiver.
|
|
12
|
|
Protection of Trustee and Receiver
|
|
12.1
|
|
Liability
|
|
|
|
The Receiver of the Issuer shall not be liable to the Issuer in the absence of wilful
default, fraud or gross negligence or breach of trust on its part or that of its officers,
employees or agents in respect of any loss or damage which arises out of the exercise or the
attempted or purported exercise of or failure to exercise any of their respective powers.
|
|
12.2
|
|
Possession
|
|
|
|
Without prejudice to the generality of Clause 12.3, entry into possession of the Charged
Property shall not render the Trustee or the Receiver of that company liable to account as
mortgagee in possession. If and whenever the Trustee or the Receiver enters into possession
of the Charged Property, it shall be entitled at any time to go out of such possession.
|
|
12.3
|
|
Mortgagee in possession
|
|
|
|
Neither the Trustee nor the Secured Creditors shall, by reason of any assignment or other
security made under or pursuant to this Deed, be or be deemed to be a mortgagee or in
possession nor shall they take any action (other than, in the case of the Secured Creditors,
|
22
|
|
with the Trustees prior written consent) which would be likely to lead to the Secured
Creditors or the Trustee becoming a mortgagee in possession in respect of any property
referred to in this Deed. The Trustee, in its absolute discretion, may at any time, serve a
written notice on the Secured Creditors requiring the Secured Creditors from the date such
notice is served to obtain the Trustees prior written consent before taking any action
which would be likely to lead to the Secured Creditors or the Trustee becoming a mortgagee
in possession in respect of any property referred to in this Deed.
|
|
12.4
|
|
Additional protection
|
|
12.4.1
|
|
The Trustee shall have no responsibility whatsoever to any Secured
Creditor as regards any deficiency or additional payment, as the case may be, which
might arise because the Trustee is subject to any Tax in respect of the Charged
Property or any part thereof or any income therefrom or any proceeds thereof.
|
|
|
12.4.2
|
|
The Trustee shall not be bound to give notice to any person of the
execution of the this Deed nor shall it be liable for any failure, omission or defect
in perfecting the Security intended to be constituted by this Deed including, without
prejudice to the generality of the foregoing:
|
|
(a)
|
|
failure to obtain any licence, consent or other authority for
the execution of the same;
|
|
|
(b)
|
|
failure to register the same in accordance with the provisions
of any of the documents of title of the Issuer to any of the Charged Property;
and
|
|
|
(c)
|
|
failure to effect or procure registration of or otherwise
protect this Deed, the Issuer Pledge Agreement, Parent Pledge Agreement or any
other documents entered into in connection therewith or any Security created
thereby or otherwise by registering the same under any registration laws in any
territory, or by registering any notice, caution or other entry prescribed by
or pursuant to the provisions of the said laws.
|
|
12.4.3
|
|
The Trustee shall not be responsible for the genuineness, validity,
adequateness or effectiveness of this Deed or any other documents entered into in
connection therewith or any other document or any obligations or rights created or
purported to be created thereby or pursuant thereto or any Security or the priority
thereof constituted or purported to be constituted by or pursuant to this Deed or any
of the other Transaction Documents, nor shall it be responsible or liable to any person
because of any invalidity of any provision of such documents or the unenforceability
thereof, whether arising from statute, law or decisions of any court and, without
prejudice to the generality of the foregoing, the Trustee shall not have any
responsibility for or have any duty to make any investigation in respect of or in any
way be liable whatsoever for:
|
|
(a)
|
|
the nature, status, creditworthiness or solvency of the Issuer;
|
|
|
(b)
|
|
the execution, legality, validity, adequacy, admissibility in
evidence or enforceability of this Deed or any other documents comprised within
the Charged Property or any other document entered into in connection
therewith;
|
|
|
(c)
|
|
the registration, filing, protection or perfection of any
Security created pursuant to this Deed, the Issuer Pledge Agreement, Parent
Pledge
|
23
|
|
|
Agreement or any other documents comprised within the Charged Property or
the priority of the Security thereby created whether in respect of any
initial advance or any subsequent advance or any other sums or liabilities;
|
|
(d)
|
|
the scope or accuracy of any representations, warranties or
statements made by or on behalf of the Issuer or any other person or entity who
has at any time provided in this Deed or any documents comprised within the
Charged Property or in any document entered into in connection therewith;
|
|
|
(e)
|
|
the performance or observance by the Issuer or any other person
of any provisions of this Deed or any other documents comprised within the
Charged Property or in any document entered into in connection therewith or the
fulfilment or satisfaction of any conditions contained therein or relating
thereto or as to the existence or occurrence at any time of any default, event
of default or similar event contained therein or any waiver or consent which
has at any time been granted in relation to any of the foregoing;
|
|
|
(f)
|
|
the existence, accuracy or sufficiency of any legal or other
opinions, searches, reports, certificates, valuations or investigations
delivered or obtained or required to be delivered or obtained at any time in
connection with the Charged Property;
|
|
|
(g)
|
|
the title of the Issuer to any of the Charged Property;
|
|
|
(h)
|
|
the failure to call for delivery of documents of title to or
require any transfers, mortgages, charges or other further assurances in
relation to any of the assets the subject matter of this Deed or any other
documents entered into in connection therewith; or
|
|
|
(i)
|
|
any other matter or thing relating to or in any way connected
with this Deed or the Charged Property or any document entered into in
connection therewith whether or not similar to the foregoing.
|
13
|
|
Expenses and Indemnity
|
|
13.1
|
|
Expenses
|
|
|
|
The Issuer covenants with and undertakes to the Trustee to reimburse or pay to the Trustee
or the Receiver (on the basis of a full indemnity) the amount of all properly incurred costs
(including properly incurred legal costs), charges and expenses (including insurance
premiums) properly incurred or sustained by the Trustee or the Receiver (including, for the
avoidance of doubt, any such costs, charges and expenses arising from any act or omission
of, or proceedings involving, any third person) in connection with:
|
|
(a)
|
|
any investigation of title to or any survey, inspection or valuation of any of
the Charged Property or under or in connection with this Deed, and the preparation,
registration, recording or perfecting of this Deed (or any of the charges contained in
or granted pursuant to it), or any other document entered into between the Issuer and
the Trustee (amongst others);
|
|
|
(b)
|
|
the exercise or the attempted exercise, or the consideration of the exercise by
or on behalf of the Trustee or the Receiver of any of the powers of the Trustee or the
Receiver, and the enforcement, preservation or attempted preservation of this
|
24
|
|
|
Deed (or any of the charges contained in or granted pursuant to it) or any of the
Charged Property or any other action taken by or on behalf of the Trustee or the
Receiver with a view to or in connection with the recovery by the Trustee or the
Receiver of the Issuer Obligations from the Issuer or any other person; or
|
|
|
(c)
|
|
the carrying out of any other act or matter which the Trustee or the Receiver
may reasonably consider to be for the preservation, improvement or benefit of the
Charged Property.
|
13.2
|
|
Indemnity
|
|
|
|
The Issuer agrees to indemnify the Trustee and the Receiver, on an after-Tax basis, from and
against all losses, actions, claims, costs (including legal costs on a full indemnity
basis), expenses (including insurance premiums), demands and liabilities whether in
contract, tort, delict or otherwise now or hereafter sustained or incurred by the Trustee or
the Receiver or by any person for whose liability, act or omission the Trustee or the
Receiver may be answerable, in connection with anything done or omitted to be done under or
pursuant to this Deed or any other Transaction Document to which such entity is a party, or
in the exercise or purported exercise of the powers herein contained, or occasioned by any
breach by the Issuer of any of its covenants or other obligations to the Trustee, or in
consequence of any payment in respect of the Issuer Obligations (whether made by the Issuer
or a third person) being declared void or impeached for any reason whatsoever (other than as
provided in Clause 17 of the Bond Trust Deed).
|
|
13.3
|
|
Taxes
|
|
|
|
All sums of whatsoever nature (including, without limitation, remuneration and other fees)
which are payable by the Issuer under this Deed and which are now or at any time hereafter
become subject to VAT or similar Tax shall be deemed to be exclusive of VAT or similar Tax
and the Issuer in addition to such sums will indemnify the Trustee and/or the Receiver from
and against all claims and liabilities whatsoever in respect thereof.
|
|
|
|
If the Trustee or any Receiver shall make any payment for a taxable or deemed taxable supply
to it pursuant to or in connection with this Deed and any such payment shall bear VAT which
is irrecoverable VAT the Issuer shall indemnify the Trustee or such Receiver (as the case
may be) on demand for an amount equal to such irrecoverable VAT so far as it has not been
taken into account in computing the amount of any payment made by the Issuer to the Trustee
or such Receiver under any other indemnity contained in this Deed.
|
|
13.4
|
|
Stamp duties
|
|
|
|
The Issuer shall, to the extent permitted by applicable law, pay all stamp duties and other
duties or similar Taxes including any interest and penalties arising in connection with such
payment (if any) on or arising out of or in consequence of:
|
|
(a)
|
|
the creation of the security constituted by or pursuant to this Deed, the
Issuer Pledge Agreement and the Parent Pledge Agreement ; and
|
|
|
(b)
|
|
the execution and delivery of this Deed and documents executed pursuant hereto
and the other Transaction Documents.
|
14
|
|
Protection of Security
|
|
|
|
The Issuer covenants with and undertakes to the Trustee from time to time (and, for the
purposes mentioned in paragraph (a) below, notwithstanding that the Trustee may not
|
25
have served a demand for payment of the Issuer Obligations) upon demand to execute, at the
Issuers own cost, any document or do any act or thing (other than any amendment hereto)
which:
|
(a)
|
|
the Trustee may specify with a view to registering or perfecting any charge or
other security created or intended to be created by or pursuant to this Deed (including
the perfecting of the conversion of any floating charge to a fixed charge pursuant to
Clause 15.1 or 15.2), the Issuer Pledge Agreement, Parent Pledge Agreement; or
|
|
|
(b)
|
|
the Trustee or the Receiver may specify with a view to facilitating the
exercise or the proposed exercise of any of their powers or the realisation of any of
the Charged Property; or
|
|
|
(c)
|
|
the Trustee or the Receiver may specify with a view to protecting the Security
Interests created by or pursuant to this Deed, the Issuer Pledge Agreement or the
Parent Pledge Agreement
|
provided that the Issuer shall not be obliged to execute any further documentation or take
any other action or steps to the extent that it would breach a restriction in any such
agreement (including any Transaction Documents) to which it is a party relating to
assignment, transferring, charging or sharing of possession or rights or such benefit which
would constitute a violation of any laws to which it is subject.
15
|
|
Crystallisation
|
|
15.1
|
|
Notice
|
|
|
|
In addition and without prejudice to any other event resulting in a crystallisation of the
floating charge created by this Deed or any other right the Trustee may have, the Trustee
may, at any time:
|
|
(a)
|
|
whilst a Potential Event of Default is subsisting; or
|
|
|
(b)
|
|
the Trustee believes that the Charged Property or any part thereof is in danger
of being seized or sold under any form of distress, diligence or execution levied or
threatened or is otherwise in jeopardy or imperilled; or
|
|
|
(c)
|
|
if any circumstance shall occur which in the opinion of the Trustee prejudices,
imperils or threatens or is likely to do any of the foregoing in respect of the
security created by this Deed, the Issuer Pledge Agreement or the Parent Pledge
Agreement,
|
|
|
by notice in writing to the Issuer, declare that the floating charge hereby created shall be
converted into a first specific fixed charge as to all of the undertaking, property and
assets or such of them as may be specified in the notice, and by way of further assurance,
the Issuer, at its own expense, shall execute all documents in such form as the Trustee
shall require and shall deliver to the Trustee all conveyances, deeds, certificates and
documents which may be necessary for perfecting the aforesaid floating charge.
|
|
15.2
|
|
Automatic crystallisation
|
|
|
|
In addition to and without prejudice to any other event resulting in a crystallisation of
the floating charge, the floating charge contained herein shall automatically be converted
into a fixed charge over all property, assets or undertaking of the Issuer subject to the
floating charge, if and when an Event of Default occurs.
|
26
16
|
|
Issuer Power of Attorney
|
|
16.1
|
|
Execution of Issuer Power of Attorney
|
|
|
|
Immediately upon execution of this Deed, the Issuer shall execute and deliver to the Trustee
a power of attorney in or substantially in the form set out in Schedule 1 (the
Issuer Power
of Attorney
). For the avoidance of doubt, the Trustee confirms that it may only exercise
the powers conferred under the Issuer Power of Attorney in the circumstances set out in
paragraph 1 of the Issuer Power of Attorney.
|
|
16.2
|
|
Charged Property on trust
|
|
|
|
To the extent permitted to do so under the Transaction Documents, for the purpose of giving
effect to this Deed, the Issuer hereby declares that, after the occurrence of an Event of
Default, it will hold all of the Charged Property (subject to the right of redemption) on
trust to convey, assign or otherwise deal with such Charged Property in such manner and to
such person as the Trustee shall direct, and declares that it shall be lawful for the
Trustee to appoint a new trustee or trustees of the Charged Property in place of the Issuer.
|
|
17
|
|
Other Security
|
|
17.1
|
|
No merger
|
|
|
|
The charges contained in or created pursuant to this Deed are in addition to, and shall
neither be merged in, nor in any way exclude or prejudice any other Security Interest, right
of recourse, set-off or other right whatsoever which the Trustee or any Secured Creditor may
now or at any time hereafter hold or have (or would apart from this Deed or any charge
contained or created pursuant to this Deed hold or have) as regards the Issuer or any other
person in respect of the Issuer Obligations, and neither the Trustee nor any Secured
Creditor shall be under any obligation to take any steps to call in or to enforce any
security for the Issuer Obligations, and shall not be liable to the Issuer for any loss
arising from any omission on the part of the Trustee or any Secured Creditor to take any
such steps or for the manner in which the Trustee or any Secured Creditor shall enforce or
refrain from enforcing any such security.
|
|
17.2
|
|
Consolidation
|
|
|
|
Section 93 of the 1925 Act shall not apply in relation to any of the charges contained in
this Deed.
|
|
17.3
|
|
Ruling off
|
|
|
|
If the Trustee receives notice of any Security Interest affecting the Charged Property in
contravention of the provisions of this Deed:
|
|
(a)
|
|
the Trustee may open a new account in respect of the Issuer and, if it does
not, it shall nevertheless be deemed to have done so at the time it receives such
notice; and
|
|
|
(b)
|
|
all payments made by the Issuer to the Trustee after the Trustee receives such
notice shall be credited or deemed to have been credited to the new account, and in no
circumstances whatsoever shall operate to reduce the Issuer Obligations as at the time
the Trustee receives such notice.
|
27
17.4
|
|
Change of name, etc.
|
|
|
This Deed shall remain valid and enforceable notwithstanding any change in the name,
composition or constitution of the Trustee or the Issuer or any merger, amalgamation or
consolidation by the Trustee or the Issuer with any other corporation.
|
|
18
|
|
Avoidance of Payments
|
|
18.1
|
|
No release
|
|
|
|
No assurance, security or payment which may be avoided or adjusted under the law, including
under any enactment relating to bankruptcy or insolvency and no release, settlement or
discharge given or made by the Trustee or any Secured Creditor on the faith of any such
assurance, security or payment, shall prejudice or affect the right of the Trustee or any
Secured Creditor to recover the Issuer Obligations from the Issuer or to enforce the
security contained in, or granted pursuant to, this Deed to the full extent of the Issuer
Obligations.
|
|
18.2
|
|
Retention of security
|
|
|
|
If the Trustee shall have reasonable grounds for believing that the Issuer may be unable to
pay its debts as they fall due as at the date of any payment made by the Issuer to the
Trustee, the Trustee shall be at liberty to retain the Security until the expiry of a period
of one month plus such statutory period within which any assurance, security, guarantee or
payment can be avoided or invalidated after the payment and discharge in full of all Issuer
Obligations notwithstanding any release, settlement, discharge or arrangement which may be
given or made by the Trustee on, or as a consequence of, such payment or discharge of
liability provided that, if at any time within such period, a petition shall be presented to
a competent court for an order for the winding up or the making of an administration order
in respect of the Issuer or the Issuer shall commence to be wound up or to go into
administration or any analogous proceedings shall be commenced by or against the Issuer, the
Trustee shall be at liberty to continue to retain such security for such further period as
the Trustee may determine and such security shall be deemed to continue to have been held as
security for the payment and discharge to the Trustee of all Issuer Obligations.
|
|
19
|
|
Set-off
|
|
|
|
The Trustee may at any time following an Event of Default (without notice and
notwithstanding any settlement of account or other matter whatsoever) combine or consolidate
all or any existing accounts of the Issuer whether in its own name or jointly with others
and held by it or any Secured Creditor and may set off or transfer all or any part of any
credit balance or any sum standing to the credit of any such account (whether or not the
same is due to the Issuer from the Trustee or relevant Secured Creditor and whether or not
the credit balance and the account in debit or the Issuer Obligations are expressed in the
same currency in which case the Trustee is hereby authorised to effect any necessary
conversions at its prevailing rates of exchange) in or towards satisfaction of any of the
Issuer Obligations and may in its absolute discretion estimate the amount of any liability
of the Issuer which is contingent or unascertained and thereafter set off such estimated
amount and no amount shall be payable by the Trustee to the Issuer unless and until all
Issuer Obligations have been ascertained and fully repaid or discharged.
|
28
20
|
|
Execution of Documents
|
|
|
|
Any document required to be executed as a deed by the Trustee under or in connection
with this Deed shall be validly executed if executed as a deed by a duly authorised attorney
of the Trustee.
|
|
21
|
|
Exercise of Certain Rights
|
|
21.1
|
|
Except as provided below, each of the Secured Creditors agrees with the Issuer and
the Trustee that:
|
|
(a)
|
|
only the Trustee may enforce the Security in accordance with the terms and
conditions of this Deed, the Issuer Pledge Agreement or the Parent Pledge Agreement (as
the case may be); and
|
|
|
(b)
|
|
it will not take any steps for the purpose of recovering any of the Issuer
Obligations (including by exercising any rights of set-off) or enforcing any rights
arising out of the Transaction Documents against the Issuer or procuring the winding
up, administration or liquidation of the Issuer.
|
21.2
|
|
If the Trustee has failed to serve a Bond Enforcement Notice and/or take any steps
or proceedings to enforce the Security pursuant to this Deed, the Issuer Pledge Agreement or
the Parent Pledge Agreement (as the case may be), in each case, within a reasonable time of
becoming bound under the terms of this Deed so to do and that failure is continuing, then each
of the Secured Creditors will be entitled to take any steps and proceedings as it considers
necessary other than any steps or proceedings which would result in the breach by it of this
Clause 21.2, Clause 6 and/or Clause 7 and/or any term of the other Transaction Documents.
|
|
21.3
|
|
Subject to the provisions of this Deed, the Trustee may at any time, at its
discretion and without notice, take such proceedings and/or other action as it may think fit
against, or in relation to, the Issuer or any other party to any of the Transaction Documents
to enforce its obligations under any of the Transaction Documents. Subject to the provisions
of this Deed, the Issuer Pledge Agreement or the Parent Pledge Agreement (as the case may be),
at any time after the Security has become enforceable, the Trustee may, at its discretion and
without notice, take such steps as it may think fit to enforce such Security.
|
|
21.4
|
|
The Trustee shall not be bound to take any steps or institute any proceedings or
to take any other action under or in connection with any of the Transaction Documents
(including, without limitation, enforcing the Security) unless the Trustee:
|
|
(a)
|
|
so long as any Bonds are outstanding, shall have been (i) directed to do so in
writing pursuant to an Extraordinary Resolution of the holders of the Bonds
outstanding, or (ii) requested to do so in writing by the holders of at least 75 per
cent. in aggregate of the Principal Amount Outstanding of the Bonds outstanding; and
|
|
|
(b)
|
|
in either case, shall have been indemnified and/or secured to its satisfaction
against all Liabilities to which it may thereby render itself liable or which it may
incur by so doing.
|
21.5
|
|
Following an Event of Default, the Trustee shall have the right to exercise the
Put Right.
|
29
22
|
|
Covenants, Representations and Warranties
|
|
22.1
|
|
Positive Covenants
: So long as any of the Issuer Obligations remain outstanding,
the Issuer shall:
|
|
(a)
|
|
duly perform its obligations, and diligently pursue its rights, under each
Transaction Document to which it is a party;
|
|
|
(b)
|
|
supply the Trustee and any Receiver with copies of each Transaction Document
and any information and documentation relating to any such Transaction Document
requested by the Trustee or any Receiver;
|
|
|
(c)
|
|
immediately deposit with the Trustee (or as the Trustee may otherwise direct),
all certificates and other documents of title or evidence of ownership in relation to
the UK Shares and to any of its Eligible Investments; and
|
|
|
(d)
|
|
promptly execute and deliver to the Trustee all share transfers and other
documents which may be requested by the Trustee in order to enable the Trustee or its
nominees to be the registered owner or otherwise obtain a legal title to any of the UK
Shares or, to the extent applicable, any Eligible Investment.
|
22.2
|
|
Negative Covenants
: So long as any of the Issuer Obligations remain outstanding,
the Issuer shall not, save to the extent permitted by or provided for in the Transaction
Documents or with the prior written consent of the Trustee:
|
|
(a)
|
|
create or permit to subsist any Security Interest of any kind (unless arising
by operation of law) over the Charged Property;
|
|
(b)
|
|
(i) engage in any activity which is not incidental to or necessary in
connection with any of the activities in which the Transaction Documents provide or
envisage that the Issuer will engage;
|
|
(ii)
|
|
have any subsidiaries (other than the HoldCos and their
respective subsidiaries) or any employees;
|
|
|
(iii)
|
|
own or lease any premises; or
|
|
|
(iv)
|
|
act as director of any company;
|
|
(c)
|
|
except as otherwise permitted or required by Clause 14.1 of the Bond Trust
Deed, transfer, sell, lend, part with, convey, assign or otherwise dispose of, or deal
with, or grant any option or present or future right to acquire the Charged Property or
any part thereof or any interest, estate, right, title or benefit therein;
|
|
|
(d)
|
|
pay any dividend or make any other distribution to its shareholders or issue
any further shares except in accordance with Condition 4 (
Covenants of and Restrictions
on the Issuer
);
|
|
|
(e)
|
|
incur any financial indebtedness (other than indebtedness permitted to be
incurred pursuant to, or as contemplated, in any of the Transaction Documents) or give
any guarantee in respect of financial indebtedness or of any other obligation of any
person;
|
|
|
(f)
|
|
consolidate or merge with any other person or, except as otherwise permitted or
required by Clause 14.1 of the Bond Trust Deed, convey or transfer its properties or
assets substantially or as an entirety to any other person;
|
30
|
(g)
|
|
to the extent it has a Material Adverse Effect (as defined in the Conditions),
permit the validity or effectiveness of any of the Transaction Documents, or the
priority of the security interests created thereby, to be amended, terminated,
postponed or discharged, or consent to any variation of, or exercise any powers of
consent or waiver pursuant to the terms of, or amend any term or condition of the Bonds
(save in accordance with the Conditions and the Bond Trust Deed) or any of the
Transaction Documents or permit any party to any of the Transaction Documents or the
Security (as defined in the Conditions) or any other person whose obligations form part
of the Security to be released from such obligations or dispose of all or any part of
the Security;
|
|
|
(h)
|
|
to the extent it has a Material Adverse Effect, take or allow the taking of any
action on its behalf which may result in the rights attaching to the UK Shares or any
Eligible Investment being altered, provided that, notwithstanding Clauses 3.2 and 3.5,
the Issuer shall be entitled to exercise its rights under the Put Option Agreement in
accordance with the Conditions;
|
|
|
(i)
|
|
have an interest in any bank account whatsoever other than the Issuer Accounts
and an account into which subscription monies in respect of the shares in the Issuer
are paid, unless such account or interest therein is charged to the Trustee on terms
acceptable to it; or
|
|
|
(j)
|
|
purchase or otherwise acquire any Bond or Bonds.
|
|
|
In giving any consent to the foregoing, the Trustee may require the Issuer to make such
modifications or additions to the provisions of any of the Transaction Documents or may
impose such other conditions or requirements as the Trustee may deem expedient in the
interests of the Secured Creditors, provided that such modifications or additions are
notified by the Issuer to the Rating Agencies and such Rating Agencies do not cause any
downgrade in the then current rating (assigned by such Rating Agencies) of the Bonds.
|
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22.3
|
|
Representations and Warranties
: The Issuer represents and warrants to the Trustee
that, as at the Closing Date:
|
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(a)
|
|
the Charged Property is not subject to any restriction (whether contractual or
otherwise) that may render the Security Interests granted by the Issuer under or
pursuant to this Deed, the Issuer Pledge Agreement or the Parent Pledge Agreement (as
the case may be) ineffective or which otherwise prohibits the grant of such Security
Interests;
|
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|
(b)
|
|
all payments to the Issuer by any other party to a Transaction Document to
which the Issuer is a party are not subject to any right of set-off or similar right;
|
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|
(c)
|
|
each Transaction Document to which the Issuer is a party is a legally binding,
valid and enforceable obligation of the Issuer (subject to bankruptcy, civil
rehabilitation, corporate reorganisation and similar laws of general applicability
relating to or affecting creditors rights and to general principles of equity);
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(d)
|
|
the Issuer is not in default of any of its obligations under any Transaction
Document to which it is a party;
|
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|
(e)
|
|
the entry into and performance of this Deed by the Issuer will not conflict
with any term of any Transaction Document; and
|
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|
(f)
|
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the UK Shares are fully paid.
|
31
22.4
|
|
Warranties
: The Issuer warrants to the Trustee that (i) it has taken all necessary
steps to enable it to charge or assign as security the Charged
Property in accordance with Clause 3 , Issuer Pledge Agreement or Parent Pledge Agreement (as the
case may be), and that it has taken no action nor steps to prejudice its
right, title and interest in and to the Charged Property and (ii) the
Issuer shall conduct its business and affairs such that, at all times,
its centre of main interests for the purpose of EU Insolvency Regulation
EC No. 1346/2000 of 29 May, 2000 and the Cross Border Insolvency
Regulations 2006 shall be and remains outside the European Economic Area,
and that it shall not have any establishment other than in the United
States of America.
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23
|
|
Additional Provisions Regarding the Trustee
|
|
23.1
|
|
Incorporation of Bond Trust Deed provisions
|
|
(a)
|
|
Without prejudice to the other provisions of this Deed and except as set out
below, the following clauses of the Bond Trust Deed are incorporated in and will apply,
mutatis mutandi
s, to this Deed (and for that purpose references in the Bond Trust Deed
to these presents or to this Deed will be construed as references to this Deed of
Charge):
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(i)
|
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Clause 12 (
Investment by Trustee
);
|
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|
(ii)
|
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Clause 15 (
Remuneration and indemnification of the Trustee
);
|
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|
(iii)
|
|
Clause 16 (
Supplement to Trustee Acts
);
|
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|
(iv)
|
|
Clause 17 (
Trustees liability
);
|
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|
(v)
|
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Clause 18 (
Trustee contracting with Issuer and others
);
|
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|
(vi)
|
|
Clause 22 (
New Trustee
);
|
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|
(vii)
|
|
Clause 23 (
Trustees retirement and removal
); and
|
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|
(viii)
|
|
Clause 24 (
Trustees powers to be additional
).
|
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|
Clause 15
(Remuneration and indemnification of the Trustee
) of the Bond Trust Deed
will be amended so that each of the references to the Trustee in Clauses 15.5 and
15.6 shall include a reference to any Receiver appointed by the Trustee.
|
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(b)
|
|
For the purposes of Clause 16(n)(ii) (
Supplement to Trustee Acts
) of the Bond
Trust Deed, at any time after the redemption in full of the Bonds, the Trustee will
have regard to the interests of the Secured Creditor which ranks next highest in the
order of the priority of payments set out in Clause 7.2 of this Deed.
|
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(c)
|
|
If the Trustee retires or is removed in accordance with Clause 23 (
Trustees
Retirement and Removal
) of the Bond Trust Deed, then the Trustee will retire from its
capacity as Trustee pursuant to this Deed at the same time in accordance with the terms
and conditions of this Deed. If the Trustee retires or is removed in accordance with
the terms and conditions of this Deed, then the Trustee will retire at the same time in
accordance with Clause 23 of the Bond Trust Deed.
|
24
|
|
Further Provisions
|
|
24.1
|
|
Evidence of indebtedness
|
32
|
|
In any action, proceedings or claim relating to this Deed or the charges contained in this
Deed, a statement as to any amount due to any Secured Creditor or of the Issuer Obligations
or any part thereof or a statement of any amounts which have been notified to the Trustee as
being amounts due to any Secured Creditor which is certified as being correct by an officer
of the Trustee or an officer of the relevant Secured Creditor shall, save in the case of
manifest error, be conclusive evidence that such amount is in fact due and payable.
|
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24.2
|
|
Rights cumulative, waivers
|
|
|
|
The respective rights of the Trustee, the Secured Creditors and any Receiver are cumulative,
and may be exercised as often as they consider appropriate and are in addition to their
respective rights under the general law. The respective rights of the Trustee, the Secured
Creditors and any Receiver in relation to this Deed (whether arising under this Deed or
under the general law) shall not be capable of being waived or varied otherwise than by
express waiver or variation in writing; and, in particular, any failure to exercise or any
delay in exercising any such rights shall not operate as a variation or waiver of that or
any other such right; any defective or partial exercise of such rights shall not preclude
any other or further exercise of that or any other such right; and no act or course of
conduct or negotiation on their part or on their behalf shall in any way preclude them from
exercising any such right or constitute a suspension or any variation of any such right.
|
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24.3
|
|
Notices
|
|
|
|
Any notice, communication or demand to the one or more parties hereto to be given, made or
served for any purposes under these presents shall be given, made or served by sending the
same by pre-paid post (first class if inland, first class airmail if overseas) or facsimile
transmission or by delivering it by hand as follows:
|
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|
to the Issuer:
|
|
|
|
4171 Essen Lane
Baton Rouge, Louisiana 70809
(Attention: Vice President and Secretary)
Facsimile: +1-225-925-9146
|
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|
to the Trustee:
|
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|
|
The Bank of New York
Corporate Trust Services
One Canada Square
London
E14 5AL
|
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|
(Attention: Peter Malcom/Peter Howard)
Facsimile: 020 7964 6399
|
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|
to the Account Bank:
|
|
|
|
The Bank of New York
Corporate Trust Services
One Canada Square
|
33
|
|
London
E14 5AL
|
|
|
|
(Attention: Peter Malcom/Peter Howard)
Facsimile: 020 7964 6399
|
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|
|
to the Cash Manager:
|
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|
|
The Bank of New York
Corporate Trust Services
One Canada Square
London
E14 5AL
|
|
|
|
(Attention: Peter Malcom/Peter Howard)
Facsimile: 020 7964 6399
|
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|
to the Principal Paying Agent:
|
|
|
|
The Bank of New York
Corporate Trust Services
One Canada Square
London
E14 5AL
|
|
|
|
(Attention: Peter Malcom/Peter Howard)
Facsimile: 020 7964 6399
|
|
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|
or to such other address or facsimile number as shall have been notified (in accordance with
this Clause 24) to the other parties hereto and any notice or demand sent by post as
aforesaid shall be deemed to have been given, made or served two days in the case of inland
post or seven days in the case of overseas post after despatch and any notice or demand sent
by facsimile transmission as aforesaid shall be deemed to have been given, made or served at
the time of despatch provided that in the case of a notice or demand given by facsimile
transmission a confirmation of transmission is received by the sending party and such notice
or demand shall forthwith be confirmed by post. The failure of the addressee to receive such
confirmation shall not invalidate the relevant notice or demand given by facsimile
transmission.
|
|
24.4
|
|
Severability
|
|
|
|
If a provision of this Deed is or becomes illegal, invalid or unenforceable in any
jurisdiction that shall not affect:
|
|
(a)
|
|
the validity or enforceability in that jurisdiction of this Deed; or
|
|
|
(b)
|
|
the validity or enforceability in other jurisdictions of that or any other
provision of this Deed.
|
24.5
|
|
Counterparts
|
|
|
|
This Deed may be executed in any number of counterparts and this has the same effect as if
the parties to this Deed had executed a single copy of this Deed.
|
34
24.6
|
|
Parties
|
|
|
|
When any party hereto acts in more than one capacity, the provisions of this Deed shall
apply to such party as though it were a separate party in each such capacity, except to the
extent that such party is required in one capacity to give any notice or information to
itself in another capacity.
|
|
24.7
|
|
Third Party Rights
|
|
|
|
A person who is not a party hereto has no rights under the Contracts (Rights of Third
Parties) Act 1999 to enforce any term of this Deed, but this does not affect any right or
remedy of a third party which exists or is available apart from the Contracts (Rights of
Third Parties) Act 1999.
|
|
24.8
|
|
Bond Trust Deed
|
|
|
|
This Deed is supplemental to and shall be read and construed together as one document with
the Bond Trust Deed.
|
|
25
|
|
Governing Law and Jurisdiction
|
|
25.1
|
|
Governing Law
|
|
|
|
This Deed is governed by, and shall be construed in accordance with, English law.
|
|
25.2
|
|
Submission to Jurisdiction
|
|
|
|
Each party to this Deed (other than the Trustee) hereby irrevocably submits to the
non-exclusive jurisdiction of the English courts in any action or proceeding arising out of
or relating to this Deed, and hereby irrevocably agrees that all claims in respect of such
action or proceeding may be heard and determined by such courts. Each party to this Deed
hereby irrevocably waives, to the fullest extent it may possibly do so, any defence or claim
that the English courts are an inconvenient forum for the maintenance or hearing of such
action or proceeding.
|
|
25.3
|
|
Service of Process
|
|
|
|
The Issuer irrevocably appoints Law Debenture Corporate Services Limited (at Fifth Floor,
100 Wood Street, London EC2V 7EX) as its authorised agent for service of process in England.
If for any reason such agent shall cease to be such agent for the service of process, the
Issuer shall forthwith appoint a new agent for service of process in England and shall
immediately notify each of the other parties to this Deed of such appointment. Nothing shall
affect the right to serve process in any other manner permitted by law.
|
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26
|
|
Limited Recourse and Non Petition
|
|
26.1
|
|
The obligations of the Issuer under the Bonds and the Transaction Documents will
not be obligations or responsibilities of, or guaranteed by, Shaw Group or any other person or
entity, and the Secured Creditors shall have no recourse to Shaw Group beyond the pledge by
The Shaw Group Inc. of its membership interests in the Issuer pursuant to the Parent Pledge
Agreement.
|
|
26.2
|
|
Having realised the Security and distributed the net proceeds in accordance with
the terms of the Deed of Charge, neither the Trustee nor any other Secured Creditor may take
any
|
35
|
|
further steps against the Issuer to recover any sum still unpaid and the Issuers liability
for any sum still unpaid shall be extinguished.
|
26.3
|
|
In particular, none of the Trustee or any other Secured Creditor may take any
corporate action or other steps or legal proceedings for the dissolution, liquidation or
reorganisation of, or for the appointment of a receiver, administrator, trustee, liquidator or
similar official for, the Issuer under any bankruptcy, insolvency, receivership or similar
law.
|
36
SCHEDULE 1
Issuer Power of Attorney
THIS POWER OF ATTORNEY is made as a deed on 13 October 2006 by Nuclear Energy Holdings,
L.L.C., a company with limited liability organised under the laws of the State of Delaware, United
States of America, whose registered office is at c/o Corporation Trust Center, 1209 Orange Street,
Wilmington, Delaware 19801-1120 (the
Company
).
BACKGROUND:
Pursuant to the Deed of Charge, provision was made for the execution by the Company of this Power
of Attorney.
THEREFORE:
1
|
|
Appointment
|
|
|
|
The Company, as security for the continuing performance of the undertakings and
covenants on the part of the Company contained in the Transaction Documents to which it is
or may become party, hereby irrevocably appoints The Bank of New York and its successors as
Trustee to be its true and lawful attorney (the
Attorney
, which expression includes any
additional or substitute attorney appointed pursuant to paragraph (c) below) with the full
power and authority of the Company in its name, and on its behalf, to do the following acts
and things:
|
|
(a)
|
|
every act or thing which the Attorney may deem to be necessary, proper or
expedient for fully and effectually vesting, transferring or assigning the Security
and/or the Charged Property or any part thereof and/or the Companys estate, right,
title, benefit and/or interest therein or thereto in or to the Attorney and its
successors in title or other person or persons entitled to the benefit thereof in the
same manner and as fully and effectually in all respects as the Company could have
done;
|
|
|
(b)
|
|
every act or thing which the Attorney considers in each case
bona fide
necessary for the protection or preservation of the Attorneys interests and rights in
and to the Charged Property or which ought to be done under the covenants, undertakings
and provisions contained in the Transaction Documents or any documents executed
pursuant thereto on or at any time after the occurrence of an Event of Default or in
any other circumstances where the Attorney has become entitled to take the steps
referred to in clauses 9.4 to 9.6 (inclusive) of the Deed of Charge; and
|
|
|
(c)
|
|
to appoint, from time to time, such of its officers, employees and authorised
agents to be an additional or substitute Attorney or Attorneys (with power to act alone
or together with any other such appointee) for all or any of the purposes stated above.
|
2
|
|
Undertaking
|
|
|
|
The Company undertakes to ratify whatever the Attorney may do in the name, or on behalf
of, the Company in exercising the powers contained in this document and to indemnify the
Attorney against any loss incurred by it in connection with anything lawfully done by it in
the exercise or the purported exercise of the powers contained in this document, save for
|
37
|
|
any loss which would not have arisen but for the gross negligence, wilful default or fraud
of the Attorney.
|
3
|
|
Duration
|
|
|
|
This Power of Attorney, having been given as security for the continuing performance by
the Company of the undertakings and covenants on the part of the Company contained in the
Transaction Documents and to protect the interests of the Attorney in respect thereof, shall
not be revoked without the express written consent of the Attorney, notwithstanding the
bankruptcy, insolvency, receivership, liquidation or administration or similar proceeding in
respect of the Company.
|
|
4
|
|
Miscellaneous
|
|
(a)
|
|
Terms used, but not defined, in this Power of Attorney have the meaning given to
them in the Deed of Charge.
|
|
|
(b)
|
|
This Power of Attorney is governed by, and shall be construed in accordance
with, English law.
|
This Power of Attorney has been executed and been delivered as a deed on the date stated at the
beginning of this Power of Attorney.
EXECUTED as a DEED by
|
|
}
|
|
NUCLEAR ENERGY HOLDINGS, L.L.C.
acting by
|
|
}
}
|
|
Officer
Officer
38
This Deed has been executed and delivered as a deed on the date stated at the beginning of this
Deed.
Issuer
EXECUTED as a DEED by
NUCLEAR ENERGY HOLDINGS, L.L.C.
acting by
|
|
}
}
}
|
|
Officer
Officer
Trustee
EXECUTED as a DEED by
THE BANK OF NEW YORK
acting by
|
|
}
}
}
|
|
Authorised Signatory
Account Bank
EXECUTED as a DEED by
THE BANK OF NEW YORK
acting by
|
|
}
}
}
|
|
Authorised Signatory
Cash Manager
EXECUTED as a DEED by
THE BANK OF NEW YORK
acting by
|
|
}
}
}
|
|
Authorised Signatory
39
Principal Paying Agent and
Calculation Agent
EXECUTED as a DEED by
THE BANK OF NEW YORK
acting by
|
|
}
}
}
|
|
Authorised Signatory
Swap Counterparty
EXECUTED as a DEED by
MORGAN STANLEY CAPITAL
SERVICES INC.
acting by
|
|
}
}
}
|
|
Authorised Signatory
40
Exhibit 10.12
REIMBURSEMENT AGREEMENT
This REIMBURSEMENT AGREEMENT (this
Agreement
) is made and entered into on October 13, 2006
(the
Effective Date
), between The Shaw Group Inc., a Louisiana corporation (
Shaw
), and Toshiba
Corporation, a Japanese corporation (
Toshiba
). Shaw and Toshiba are also referred to herein
together as the
Parties
and individually as a
Party
.
RECITALS
A. On the terms and subject to the conditions set forth in the Investment Agreement, dated as
of October 4, 2006, among Toshiba, Nuclear Energy Holdings, L.L.C., a Delaware limited liability
company (
NEH
), Toshiba Nuclear Energy Holdings (US) Inc., a Delaware corporation (
US Holdco
),
and Shaw, NEH has directly agreed to acquire 800 shares of Class A Stock of US Holdco for a
consideration of $800,000,000 and representing, as of the Closing Date (as defined in such
Investment Agreement), twenty percent (20.0%) of the outstanding capital stock thereof
(collectively, the
US Shares
). On the terms and subject to the conditions set forth in the
Investment Agreement, dated as of October 4, 2006, among Toshiba, NEH, Toshiba Nuclear Energy
Holdings (UK) Limited
,
a company incorporated in England (
UK Holdco
and, together with US Holdco,
the
Holdcos
), and Shaw, NEH has directly agreed to acquire 280 Class A Shares in the capital of
UK Holdco for a consideration of $280,000,000 and representing, as of the Closing Date (as defined
in such Investment Agreement), twenty percent (20.0%) of the outstanding capital stock thereof
(collectively, the
UK Shares
; and, together with the US Shares, the
Shares
).
B. On even date herewith, Toshiba and NEH have entered into two Put Option Agreements (the
Put Option Agreements
) pursuant to which Toshiba provides to NEH put options with respect to the
Shares, on the terms and conditions set forth therein.
C. As a condition to Toshiba entering into the Put Option Agreements, Toshiba has requested
that Shaw, and Shaw has agreed to, reimburse Toshiba for certain amounts paid by Toshiba in
connection with stamp or transfer taxes, tax withholdings or deduction in connection with any
exercise by NEH of the put rights under the Put Option Agreements on the terms and subject to the
conditions set forth in this Agreement.
NOW, THEREFORE, the Parties, in consideration of the premises and the terms, covenants and
conditions set forth below, hereby agree as follows:
AGREEMENT
1. DEFINITIONS; INTERPRETATION.
1.1
Terms Not Defined in this Agreement
. Term used but not otherwise defined herein
shall have the meanings given to such terms in the Put Option Agreement.
1.2
Interpretation
.
(a)
Certain Terms
. The words hereof, herein, hereunder and similar words refer
to this Agreement as a whole and not to any particular provision of this Agreement. The term
including is not limited and means including without limitation.
(b)
Section References; Titles and Subtitles
. Unless otherwise noted, all references
to Sections herein are to Sections of this Agreement. The titles, captions and headings of this
Agreement are inserted for convenience of reference only and are not intended to be a part of or to
affect the meaning or interpretation of this Agreement.
2. REIMBURSEMENT OBLIGATION.
2.1
Reimbursement by Shaw
. (a) If and to the extent that, (i) in connection with the
transfer of Shares pursuant to the Put Option Agreements, Toshiba or its subsidiaries are required
to pay any stamp duty, stamp duty reserve tax, transfer tax or other similar tax or duty (
Transfer
Taxes
) or (ii) in accordance with Section 3.2 either of the Put Option Agreement, Toshiba (or its
permitted designee under a Put Option Agreement) (A) is required under applicable law to withhold
or deduct from the Put Price any taxes, duties, assessments or governmental charges of whatever
nature imposed, levied, collected, withheld or assessed by or within Japan or any authority therein
or thereof having power to tax (
Taxes
) and (B) pays to NEH any additional amounts as will result
in the receipt by NEH of such amounts as would have been received by NEH had no withholding or
deduction been required (
Tax Gross-Up Amounts
), Shaw shall reimburse Toshiba for (x) all such Tax
Gross-Up Amounts, (y) all such Transfer Taxes and (z) additional Taxes paid or payable by Toshiba
in respect of the amounts reimbursed under the preceding clauses (x) and (y) (collectively, the
Put Loss Amounts
) within two Business Days after receipt from Toshiba of a written request for
payment thereof (together with substantiating documentation).
(b) In addition, Shaw agrees to pay on demand any and all costs, including reasonable legal
fees and expenses, and other expenses incurred by Toshiba in enforcing Shaws payment obligations
under this Section 2.1;
provided
that Shaw shall not be liable for any such costs and
expenses if no payment under this Section 2.1 is due (such amounts, together with the Put Loss
Amounts, the
Reimbursable Amounts
).
2.2
Nature of Obligations
. The obligations of Shaw hereunder are primary and
unconditional, and Toshiba shall not be required to bring an action against NEH to enforce its
rights against Shaw with respect to any Reimbursable Amounts. Until payment in full of
Reimbursable Amounts, Shaw expressly waives, on behalf of itself and NEH, any and all rights of
subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which Shaw or
NEH may now or hereafter have against Toshiba arising from the existence or performance of this
Agreement or any other agreement.
2.3
Dividend
. Upon receipt by Shaw of a written request for payment as contemplated
by Section 2.1, Shaw shall cause NEH (subject to any restrictions in NEHs financing documentation)
to assign and pay over to Toshiba all Dividends that NEH receives after exercise of the Put Right
up to an amount, when combined with any payments made by or on behalf of Shaw in respect of its
obligations under Section 2.1, equal to the full amount of all Reimbursable Amounts (
Assigned
Dividends
), and all such rights shall thereupon become
2
vested in Toshiba, which shall have the sole and exclusive right and authority to receive and
retain any such Assigned Dividends. In such event, Shaw shall cause NEH to promptly notify (or if
NEH does not do so promptly, shall allow Toshiba to notify) the applicable HoldCo and instruct such
HoldCo to pay any and all such Assigned Dividends directly to Toshiba free and clear of, and
without withholding or deduction for, any taxes, duties, assessments or governmental charges of
whatever nature imposed, levied, collected, withheld or assessed by any Government Authority having
power to tax, unless such withholding or deduction is required by law. All Assigned Dividends
received by Shaw or its Subsidiaries contrary to the provisions of this Section 2.3 shall be held
in trust for the benefit of Toshiba, shall be segregated from other property or funds of Shaw and
such Subsidiaries and upon receipt shall be forthwith delivered to Toshiba in the same form as so
received (with any necessary endorsement), free and clear of, and without withholding or deduction
for, any taxes, duties, assessments or governmental charges of whatever nature imposed, levied,
collected, withheld or assessed by any Government Authority having power to tax, unless such
withholding or deduction is required by law. For the purposes of this Section 2.3, the term
Dividends
shall mean any dividends, interest, cash, instruments and other property distributed
from time to time by the applicable HoldCo in respect of the Shares or any shares, interests or
other securities issued or distributed by the applicable HoldCo with respect thereto.
3. RANKING, PAYMENTS AND SET-OFF.
3.1
Ranking
. The payment obligations of Shaw under this Agreement shall, save for such
exceptions as may be provided in applicable bankruptcy Law, at all times rank pari passu with all
of Shaws other present and future unsecured and unsubordinated obligations.
3.2
Withholding
. All payments made by or on behalf of Shaw under this Agreement shall
be made free and clear of, and without withholding or deduction for, any taxes, duties, assessments
or governmental charges of whatever nature imposed, levied, collected, withheld or assessed by any
Government Authority having power to tax, unless such withholding or deduction is required by law,
in which event Shaw shall pay such additional amounts as will result in receipt by Toshiba of the
full amount of Reimbursable Amounts it would have received had no such withholding or deduction
been required.
3.3
Set-off
. Toshiba shall be absolutely entitled to receive all amounts payable in
respect of this Agreement, and Shaw hereby waives, on behalf of itself and NEH, as against Toshiba,
all rights of set-off or counterclaim that would or might otherwise be available to Shaw or NEH.
4. REPRESENTATIONS AND WARRANTIES.
4.1
Toshiba
. Toshiba represents and warrants to Shaw, as of the Effective Date, that:
(a)
Due Authorization
. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereunder to be carried out by it have been duly
authorized by all necessary corporate action on the part of Toshiba. This Agreement, and all
agreements and documents executed and delivered pursuant to this Agreement, constitute valid and
binding obligations of Toshiba, enforceable against Toshiba in accordance with its terms,
3
subject to applicable bankruptcy Laws and other laws or equitable principles of general
application affecting the rights of creditors generally.
(b)
No Conflicts
. Neither the execution or delivery of this Agreement by Toshiba nor
the fulfillment or compliance by Toshiba with any of the terms hereof shall, with or without the
giving of notice and/or the passage of time, (i) conflict with, or result in a breach of the terms,
conditions or provisions of, or constitute a default under, (A) the organizational or charter
documents of Toshiba or (B) any contract or any judgment, decree or order to which Toshiba is
subject or by which it is bound, or (ii) require any consent, license, permit, authorization,
approval or other action by any Person or Government Authority which has not yet been obtained or
received. The execution, delivery and performance of this Agreement by Toshiba and compliance with
the provisions hereof by Toshiba shall not violate any provision of any Law to which Toshiba is
subject or by which it is bound.
(c)
No Actions
. There are no lawsuits, actions (or to the best knowledge of Toshiba,
investigations), claims or demands or other proceedings pending or, to the best of the knowledge of
Toshiba, threatened against Toshiba or any of its Subsidiaries which, if resolved in a manner
adverse to Toshiba or such Subsidiaries, would adversely affect the right or ability of Toshiba to
carry out its obligations set forth in this Agreement.
4.2
Shaw
. Shaw represents and warrants to Toshiba, as of the Effective Date, that:
(a)
Due Authorization
. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereunder to be carried out by it have been duly
authorized by all necessary corporate action on the part of Shaw. This Agreement, and all
agreements and documents executed and delivered pursuant to this Agreement, constitute valid and
binding obligations of Shaw, enforceable against Shaw in accordance with its terms, subject to
applicable bankruptcy Laws and other laws or equitable principles of general application affecting
the rights of creditors generally.
(b)
No Conflicts
. Neither the execution or delivery of this Agreement by Shaw nor the
fulfillment or compliance by Shaw with any of the terms hereof shall, with or without the giving of
notice and/or the passage of time, (i) conflict with, or result in a breach of the terms,
conditions or provisions of, or constitute a default under, (A) the organizational or charter
documents of Shaw or (B) any contract or any judgment, decree or order to which Shaw is subject or
by which it is bound, or (ii) require any consent, license, permit, authorization, approval or
other action by any Person or Government Authority which has not yet been obtained or received.
The execution, delivery and performance of this Agreement by Shaw and compliance with the
provisions hereof by Shaw shall not violate any provision of any Law to which Shaw is subject or by
which it is bound.
(c)
No Actions
. There are no lawsuits, actions (or to the best knowledge of Shaw,
investigations), claims or demands or other proceedings pending or, to the best of the knowledge of
Shaw, threatened against Shaw or any of its Subsidiaries which, if resolved in a manner adverse to
Shaw or such Subsidiaries, would adversely affect the right or ability of Shaw to carry out its
obligations set forth in this Agreement.
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5. MISCELLANEOUS.
5.1
Governing Law
. This Agreement, as to which time is of the essence, shall be
construed according to, and the rights of the Parties shall be governed by, the laws of the State
of New York. In the event of any dispute between the Parties arising out of or in connection with
this Agreement, the Parties shall use good faith efforts to resolve such dispute amicably. If the
Parties cannot resolve such dispute amicably after a period of 60 days, such dispute shall be
finally settled by arbitration in London, England, conducted in English and in accordance with the
Rules of Arbitration of the International Chamber of Commerce by three arbitrators. One arbitrator
shall be appointed by Toshiba, one arbitrator shall be appointed by Shaw and the third arbitrator,
who shall serve as the Chair of the tribunal, shall be selected by the first two. If the third
arbitrator is not chosen and nominated to the ICC for appointment within 30 days of the date of
confirmation by the ICC of the later of the two party-appointed arbitrators to be confirmed, he
shall be chosen by the ICC. Any award rendered thereby shall be final and binding on the Parties,
and fully enforceable in a court of law. The award may include an award of costs, including
reasonable attorneys fees and disbursements.
5.2
Successors and Assigns
. The rights and obligations of neither Party hereunder may
be assigned or delegated without the prior written consent of the other Party. Any purported
assignment or delegation in violation of this Section 5.2 shall be void
ab initio
and have no force
or effect. The provisions hereof shall inure to the benefit of, and be binding upon, the successors
and permitted assigns of the Parties.
5.3
Entire Agreement; Amendment
. This Agreement constitutes the full and entire
understanding and agreement between the Parties with regard to the subject matter hereof. Any term
of this Agreement may be amended only with the written consent of each Party.
5.4
Notices and Other Communications
. Any and all notices, requests, demands and
other communications required or otherwise contemplated to be made under this Agreement shall be in
writing and in English and shall be provided by one or more of the following means and shall be
deemed to have been duly given (a) if delivered personally, when received, (b) if transmitted by
facsimile, on the date of transmission with receipt of a transmittal confirmation, or (c) if by a
nationally or internationally recognized courier service, on the third (3rd) day following the date
of deposit with such courier service, or such earlier delivery date as may be confirmed in writing
to the sender by such courier service. All such notices, requests, demands and other
communications shall be addressed as follows:
To Shaw at:
The Shaw Group Inc.
4171 Essen Lane
Baton Rouge, Louisiana 70809
Attention: Gary Graphia, Secretary and General Counsel
Facsimile No.: + 1-225-925-9146
Email: gary.graphia@shawgrp.com
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with a copy, which shall not constitute notice, to:
Vinson & Elkins L.L.P.
1001 Fannin Street, Suite 2300
Houston, TX 77002
Attention: Clifton S. Rankin, Partner
Facsimile No.: + 1-713-615-5162
To Toshiba at:
Toshiba Corporation
Toshiba Building 31B
1-1-1, Shibaura, Minato-ku, Tokyo 105-8001, Japan
Attention: General Manager Legal Affairs Department, Power Systems
and Services Company
Facsimile No.: + 81-3-5444-9183
with a copy, which shall not constitute notice, to:
Skadden, Arps, Slate, Meagher & Flom LLP
Izumi Garden Tower 21st Floor
1-6-1 Roppongi Minato-ku, Tokyo, 106-6021, Japan
Attention: Mitsuhiro Kamiya, Partner
Facsimile No.: + 81-3-3568-2626
or to such other address or facsimile number as a Party may have specified to the other Party in
writing delivered in accordance with this Section 5.4.
5.5
Delays or Omissions
. No delay or omission to exercise any right, power or remedy
accruing to any Person hereunder, upon any breach or default under this Agreement, shall impair any
such right, power or remedy nor shall it be construed to be a waiver of any such breach or default,
or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any Person hereunder of any breach or default under this Agreement, or any
waiver on the part of any Person of any provisions or conditions of this Agreement, must be in
writing and shall be effective only to the extent specifically set forth in such writing and signed
by the waiving or consenting Person.
5.6
Severability
. If any provision of this Agreement is found to be invalid or
unenforceable, then such provision shall be construed, to the extent feasible, so as to render the
provision enforceable and to provide for the consummation of the transactions contemplated hereby
on substantially the same terms as originally set forth herein, and if no feasible interpretation
would save such provision, it shall be severed from the remainder of this Agreement, which shall
remain in full force and effect unless the severed provision is essential to the rights or benefits
intended by the Parties. In such event, the Parties shall use best efforts to
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negotiate, in good faith, a substitute, valid and enforceable provision or agreement which
most nearly effects the Parties intent in entering into this Agreement.
5.7
Further Assurances
. The Parties shall perform such acts, execute and deliver such
instruments and documents and do all other such things as may be reasonably necessary to effect the
transactions contemplated hereby.
5.8
Costs and Expenses
. The Parties shall each bear their own legal and other costs
and out-of-pocket expenses arising out of the negotiation, preparation and execution of this
Agreement.
5.9
Counterparts
. This Agreement may be executed in any number of counterparts, each
of which shall be an original, but all of which together shall constitute one instrument.
Execution and delivery of this Agreement by exchange of facsimile copies bearing the facsimile
signature of a Party shall constitute a valid and binding execution and delivery of this Agreement
by such Party.
[Remainder of page intentionally blank.]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.
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THE SHAW GROUP INC.
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TOSHIBA CORPORATION
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By:
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By:
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Name: J.M Bernhard, Jr.
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Masao Niwano
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Title: Chairman of the Board and
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Director, Corporate Senior Executive
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Chief Executive Officer
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Vice President
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