Issuer Pledge Agreement between Nuclear Energy Holdings, L.L.C. and The Bank of New York (Trustee) dated October 13, 2006
This agreement is between Nuclear Energy Holdings, L.L.C. (the Pledgor) and The Bank of New York, acting as Trustee for secured creditors. It secures the obligations of the Pledgor related to the issuance of certain bonds by pledging shares and related rights in Toshiba Nuclear Energy Holdings (US) Inc. and other specified collateral. The agreement outlines the rights and duties of both parties, including the Trustee's authority to hold and enforce the pledged assets if the Pledgor defaults on its obligations under the bond issuance.
Nuclear Energy Holdings, L.L.C.
as Pledgor
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(a) | all Pledged Collateral; | ||
(b) | all books and Records pertaining to the Pledged Collateral, including all Collateral Records; and | ||
(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. |
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(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. | ||
(b) | 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. | ||
(c) | 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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sets forth the date of such change and all information applicable to each acquired party or constituent party to a merger or consolidation. |
(a) | 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. | ||
(b) | 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. | ||
(c) | 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. | ||
(d) | 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. |
(a) | 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. | ||
(b) | All of the Pledged Stock has been duly and validly issued and are fully paid and nonassessable. |
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(c) | 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. | ||
(d) | All Pledged Collateral represented by Certificated Securities has been delivered to the Trustee in the State of New York. | ||
(e) | 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. |
(a) | 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. | ||
(b) | 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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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. | |||
(c) | The Pledgor hereby covenants and agrees that it shall enforce all of its rights with respect to any Pledged Collateral. | ||
(d) | 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. | ||
(e) | 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. | ||
(f) | Voting and Distributions |
(i) | So long as no Enforcement Event shall have occurred and shall be continuing: |
(A) | 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; | ||
(B) | 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 | ||
(C) | 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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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. |
(ii) | Upon the occurrence and continuance of an Enforcement Event: |
(A) | 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; | ||
(B) | 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 | ||
(C) | 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. |
(g) | 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. |
(a) | 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: |
(i) | 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 | ||
(ii) | 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. |
(b) | 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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(a) | 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: |
(i) | upon the occurrence of an Enforcement Event, |
(A) | 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; | ||
(B) | 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; | ||
(C) | 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; | ||
(D) | to settle, compromise, compound, adjust or defend any claims, actions, suits or proceedings relating to all or any of the Collateral; | ||
(E) | to use, sell, assign, transfer, pledge, make any agreement with respect to or otherwise deal with all or any of the Collateral; |
(ii) | to prepare and file Records (including UCC financing statements) as further described in Section 5.1(b); | ||
(iii) | 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 | |||
(iv) | 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. |
(b) | 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. |
(a) | 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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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. | |||
(b) | 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. | ||
(c) | 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. | |||
(d) | 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. | ||
(e) | 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. | ||
(f) | The Trustee shall have no obligation to marshal any of the Collateral. |
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(a) | 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. | ||
(b) | 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. | ||
(c) | 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. | ||
(d) | 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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(a) | 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. | ||
(b) | 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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(a) | 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. | ||
(b) | 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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(c) | 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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Nuclear Energy Holdings, L.L.C., as Pledgor | ||||
By: | ||||
Title: | ||||
The Bank of New York, as Trustee | ||||
By: | ||||
Title: |
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To the Issuer Pledge Agreement
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correct | Previous | Additional | and organizational | |||||||||||||
legal name: | names: | names: | Federal TIN: | identification number: | ||||||||||||
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legal name: | Location of chief executive office | |||
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legal name: | Description of structural changes: | |||
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To the Issuer Pledge Agreement
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To the Issuer Pledge Agreement
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TO THE ISSUER PLEDGE AGREEMENT
By: | ||||
Title: |
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TO THE ISSUER PLEDGE AGREEMENT
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TO THE ISSUER PLEDGE AGREEMENT
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Contents | Page | |||||
SECTION 1 DEFINITIONS; RULES OF INTERPRETATION | 2 | |||||
Section 1.1 | Definition of Terms Used Herein | 2 | ||||
Section 1.2 | UCC Terms used herein that are defined in the UCC but not defined | 2 | ||||
herein have the meanings given to them in the UCC, including the following which are capitalized herein: | ||||||
Section 1.3 | General Definitions In this Agreement: | 2 | ||||
Section 1.4 | Rules of Interpretation | 4 | ||||
Section 1.5 | Certain Terms | 4 | ||||
SECTION 2 GRANT OF SECURITY | 5 | |||||
Section 2.1 | Grant of Security | 5 | ||||
Section 2.2 | Separate and Distinct Grants of Security | 5 | ||||
SECTION 3 REPRESENTATIONS AND WARRANTIES | 6 | |||||
Section 3.1 | Title | 6 | ||||
Section 3.2 | Names, Locations | 6 | ||||
Section 3.3 | Filings, Consents | 7 | ||||
Section 3.4 | Security Interests | 7 | ||||
Section 3.5 | Pledged Collateral | 7 | ||||
SECTION 4 COVENANTS | 8 | |||||
Section 4.1 | Change of Name; Location of Collateral; Place of Business | 8 | ||||
Section 4.2 | Protection of Security | 8 | ||||
Section 4.3 | Pledged Collateral | 8 | ||||
SECTION 5 FURTHER ASSURANCES; | 11 | |||||
Section 5.1 | Further Assurances | 11 | ||||
SECTION 6 SECURITY AGENT APPOINTED ATTORNEY-IN-FACT | 12 | |||||
Section 6.1 | Power of Attorney | 12 | ||||
Section 6.2 | No Duty on the Part of Trustee or Secured Creditors | 13 | ||||
SECTION 7 REMEDIES | 13 | |||||
Section 7.1 | Remedies Upon Enforcement Event | 13 | ||||
Section 7.2 | Application of Proceeds | 15 | ||||
Section 7.3 | Securities Act, Etc. | 16 | ||||
SECTION 8 STANDARD OF CARE; SECURITY AGENT MAY PERFORM | 16 | |||||
SECTION 9 MISCELLANEOUS | 17 | |||||
Section 9.1 | Notices | 17 | ||||
Section 9.2 | Security Interests Absolute | 17 | ||||
Section 9.3 | Survival of Agreement | 17 | ||||
Section 9.4 | Binding Effect | 17 | ||||
Section 9.5 | Successors and Assigns | 17 | ||||
Section 9.6 | Trustees Fees and Expenses; Indemnification | 18 | ||||
Section 9.7 | Governing Law | 19 |
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Contents | Page | |||||
Section 9.8 | Waivers; Amendment | 19 | ||||
Section 9.9 | Waiver of Jury Trial | 19 | ||||
Section 9.10 | Severability | 20 | ||||
Section 9.11 | Execution in Counterparts | 20 | ||||
Section 9.12 | Section Titles | 20 | ||||
Section 9.13 | Jurisdiction; Consent to Service of Process | 20 | ||||
Section 9.14 | Termination | 21 | ||||
EXHIBIT A | FORM OF SECURITY SUPPLEMENT | |||||
EXHIBIT B | SEARCH REPORTS | |||||
EXHIBIT C | FINANCING STATEMENTS |
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