Deed of Charge (2006)Full Document 

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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
             
Clause   Heading   Page  
1
  Definitions and Interpretation     1  
2
  Security Trust     8  
3
  Creation of Security     8  
4
  Restriction on Exercise of Certain Rights     12  
5
  Release of Charged Property     12  
6
  Prior to service of a Bond Enforcement Notice     12  
7
  Following Service of a Bond Enforcement Notice     12  
8
  Acknowledgement of Secured Creditors     12  
9
  The Trustee’s Powers     12  
10
  Receiver     12  
11
  Protection of Third Parties     12  
12
  Protection of Trustee and Receiver     12  
13
  Expenses and Indemnity     12  
14
  Protection of Security     12  
15
  Crystallisation     12  
16
  Issuer Power of Attorney     12  
17
  Other Security     12  
18
  Avoidance of Payments     12  
19
  Set-off     12  
20
  Execution of Documents     12  
21
  Exercise of Certain Rights     12  
22
  Covenants, Representations and Warranties     12  
23
  Additional Provisions Regarding the Trustee     12  
24
  Further Provisions     12  
25
  Governing Law and Jurisdiction     12  
26
  Limited Recourse and Non Petition     12  
i
 

 


 

THIS DEED OF CHARGE is made on 13 October 2006 between:
(1)   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)   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)   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;
 
    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)   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;
 
(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;

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