**EXHIBIT 10.6**

 

**EXECUTION COPY**

 

**TERMINATION AGREEMENT**

 

**THIS TERMINATIONAGREEMENT**(this **“Agreement”**),dated as of December 31, 2005, is entered into by and among the followingparties:

 

•                                          **WASHINGTON GROUP INTERNATIONAL, INC.,** anOhio corporation formerly known as Morrison Knudsen Corporation, (“**Washington Group**”);

 

•                                          **BRITISH NUCLEAR FUELS plc** (Company Number5027024), a company organized and existing under the laws of England (**“BNFL”**); and

 

•                                          **BNFL USA GROUP INC.,**a Delaware corporation(**“BNFL-USA”**).

 

# **WITNESSETH**

 

**WHEREAS:**

 

1.                                       WashingtonGroup and BNFL-USA entered into a Consortium Agreement, dated as of June 24,1998 (the “**Original Agreement**”) pursuant towhich they formed a consortium for the purpose of acquiring the Energy Systemsbusiness (the “**ESBU Business**”) and the GovernmentOperations business (the “**GESCO Business**”)of CBS Corporation (“**CBS**”).

 

2.                                       TheOriginal Agreement set forth the agreement of Washington Group and BNFL-USAconcerning the basis on which the ESBU and GESCO Businesses would be owned and thebasis on which ownership, control and risk would be shared after theacquisition.

 

3.                                       OnJune 24, 1998 Washington Group and BNFL-USA organized WGNH Acquisition,LLC, a Delaware limited liability company (“**WGNH**”),for the purpose of entering into asset purchase agreements with CBS Corporationfor the acquisition of the ESBU and GESCO Businesses and acting as a holdingcompany for Washington Group’s and BNFL-USA’s interests in the ESBU and GESCOBusinesses.

 

4.                                       WGNH enteredinto (i) an Asset Purchase Agreement, dated as of June 25, 1998 (the “**ESBU Purchase Agreement**”), with CBS covering the acquisitionby WGNH of the ESBU Business, and (ii) an Asset Purchase Agreement, datedas of June 25, 1998 (the “**GESCO Purchase Agreement**”),with CBS covering the acquisition by WGNH of the GESCO Business.  The ESBU Purchase Agreement and the GESCOPurchase Agreement are sometimes referred to individually as an “**Asset Purchase Agreement**” or collectively as the “**Asset Purchase Agreements**.”

 

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5.                                       WashingtonGroup and BNFL-USA amended and restated the Original Agreement in its entiretyas set forth in the Amended and Restated Consortium Agreement dated March 19,1999 (“**First Amended Agreement**”) so as toreflect their revised agreement concerning the basis on which the ESBU andGESCO Businesses would be owned, and the basis on which ownership, control andrisk would be shared after the acquisition.

 

6.                                       Pursuantto the terms of the First Amended Agreement, Washington Group and BNFL-USAorganized the following entities: (a) Westinghouse Government ServicesCompany LLC, a Delaware limited liability company (“**WGS**”);(b) Westinghouse Government Environmental Services Company LLC, a Delawarelimited liability company (“**WGES**”); and (c) WestinghouseElectric Company LLC, a Delaware limited liability company (“**WELCO**”).  Thereafter,pursuant to agreements dated March 22, 1999: (a) WGNH assigned to WGSand to WGES its rights under the GESCO Purchase Agreement, and WGS and WGESassumed WGNH’s obligations under the GESCO Purchase Agreement; and (b) WGNHassigned to WELCO its rights under the ESBU Purchase Agreement and WELCOassumed WGNH’s liabilities under the ESBU Purchase Agreement.

 

7.                                       BNFL-USAorganized a wholly-owned subsidiary, BNFL Nuclear Services Inc., a Delawarecorporation (“**BNSI**”), for the purpose of holdingBNFL-USA’s interests in the GESCO and ESBU Businesses.

 

8.                                       Theacquisition by WGS and WGES of the GESCO Business closed on March 22,1999.  The acquisition by WELCO of theESBU Business closed on March 22, 1999.

 

9.                                       Amongother agreements entered into by and between or among the parties hereto and/ortheir affiliates related to this Agreement, Washington Group and BNFL-USAentered into a Supplemental Agreement dated March 19, 1999 (“**Supplemental Agreement**”) and Washington Group, BNSI and WGSentered into an Economic Rights Agreement dated March 19, 1999 (the “**Economic Rights Agreement**”).   Additionally, British Nuclear Fuels plc (“**BNFL**”) executed a BNFL Consortium Guarantee dated March 19,1999 (“**BNFL Consortium Guarantee**”) and WashingtonGroup executed a MK Consortium Guarantee dated March 19, 1999 (“**MK Consortium Guarantee**”).

 

10.                                 Bymemorandum dated April 2, 2003, BNFL communicated to, and asserted claimsagainst, Washington Group under the First Amended Agreement,certain of the other agreements referred to in this Agreement, and specifiedlegal principles (the “**BNFL Claims**”).  By memorandum dated August 29, 2003,Washington Group disputed the BNFL Claims and Washington Group asserted claimsagainst BNFL under the First Amended Agreement, certain of the other agreementsreferred to herein and specified legal principles (the “**WGI Claims**”).  Washington Group disputed all of the BNFLClaims and further disputed any liability whatsoever to BNFL or any of itsaffiliates.  BNFL disputed all of the WGIClaims and further disputed any liability therefore to Washington Group or anyof its affiliates.

 

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11.                                 WashingtonGroup and BNFL-USA further amended and restated the First Amended Agreement inits entirety, as set forth in the Second Amended and Restated ConsortiumAgreement effective as of July 31, 2004. Pursuant to, and as a condition precedent to the effectiveness of suchSecond Amended and Restated Consortium Agreement, BNFL-USA entered into aSecurity Agreement dated July 31, 2004 **(“SecurityAgreement”)**with Washington Group and the Debtors,as such term is defined in the Security Agreement.  Pursuant to, and as a further conditionprecedent to the effectiveness of such Second Amended and Restated ConsortiumAgreement, BNFL-USA entered into an Intercreditor Agreement dated as of July 31,2004 **(“Intercreditor Agreement”)**withCredit Suisse First Boston, Washington Group, the affiliates of WashingtonGroup identified as Debtors under the Security Agreement, and certain otherpersons identified as Bank Creditors in the Intercreditor Agreement****(such Second Amended and RestatedConsortium Agreement, the Security Agreement, and the Intercreditor Agreementare collectively referred to herein as the**“SecondAmended Agreement”)** so as: (i) to terminate the Economic RightsAgreement and the Supplemental Agreement, (ii) to mutually release eachother from the BNFL Claims and the WGI Claims, and (iii) to modify thelimited liability company agreements of WGS and WGES, all as set forth in theSecond Amended Agreement so as to set forth their revised agreement concerningthe basis on which WGS, WGES and WELCO would be owned, and the basis on whichcontract Fee, control and risk would be allocated.

 

12.                                 WashingtonGroup and BNFL-USA wish to (i) accelerate, in the form of a lump sumpayment at Closing, the payment of all amounts due or to become due under theSecond Amended Agreement, (ii) terminate all rights and responsibilitiesthat each party has under the Second Amended Agreement and to terminate orconfirm the prior termination of certain other agreements described herein, ineach case effective as of the Effective****Time(as defined below), and (iii) mutually release each other from all claimson the terms, and subject to the conditions set forth in, this Agreement.

 

**NOW THEREFORE,**inconsideration of the premises and the mutual covenants and agreements containedin this Agreement, the receipt and sufficiency of which are herebyacknowledged, the parties hereby agree as follows:

 

1.0                                 Termination;Payments; Release of Claims and Relinquishment of Rights

 

1.1                                 Termination.

 

Subject to the terms and conditions set forthbelow (including, without limitation, the exceptions to termination in Section 1.4below), effective as of the Effective Time, the following agreements shall beterminated in their entirety and shall be of no further force or effect: (i) theSecond Amended Agreement; (ii) any agreements between the parties and/ortheir respective affiliates (and, in certain instances, the parties and/or theirAffiliates along with one or more third parties) entered into in connectionwith the Second Amended Agreement, including without limitation the ServiceAgreement, effective July 31, 2004, implementing Section 4.1(c)(ii) ofthe Second Amended Agreement (the **“Service**

 

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**Agreement”**),as well as any indemnification obligations contained in any of the agreementsdescribed in this subsection (ii); (iii) the Washington GroupGuarantees and the BNFL Guarantees (each as defined below); and (iv) forthe avoidance of doubt, and to the extent not previously terminated in theirentirety by the First Amended Agreement or the Second Amended Agreement, asapplicable, (A) the Original Agreement, (B) the First AmendedAgreement, (C) the Supplemental Agreement, (D) the Economic RightsAgreement, and (E) any of the agreements between the parties and/or theirrespective affiliates (and, in certain instances, the parties and/or theiraffiliates along with one or more third-parties) entered into in connectionwith the agreements set forth in the foregoing clauses (A) through (D),including in each case any indemnification obligations contained therein.  In furtherance of the parties’ intent toterminate and/or confirm the termination of all responsibilities, rights, andpayments under the foregoing agreements, to avoid ongoing reviews, audits, andrelated activities after the Effective Time, and to fully and finally releaseany and all claims the parties hereto may have as of the date hereof or in thefuture may have under such agreements, the parties further agree to the mattersset forth in Sections 1.2 through 1.5 below.

 

1.2                                 Settlementof Amounts under Second Amended Agreement 

 

In order to fully and finally calculate andpay any and all amounts payable, or that would otherwise become payable, toBNFL, BNFL-USA or any of their respective Affiliates under the Second AmendedAgreement with respect to all periods ending prior to, on or after theEffective Time, Washington Group shall, in full and complete satisfaction ofsuch amounts, at Closing, pay to BNFL-USA cash in the amount of US$36,200,000(the **“Final Payment”**).  The Final Payment shall be due and payable atthe Closing and shall be made in cash via wire transfer to the followingaccount:

 

## Bank:Citizens Bank, Pittsburgh, PA

## AccountName: BNFL USA Group, Inc., Monroeville, PA

## AccountNo.: 6204964953

### ABA code: 036076150

###  

The parties hereto acknowledge and agree thatall prior payments made by Washington Group to BNFL-USA under the SecondAmended Agreement and the Final Payment, collectively, shall represent full,complete and final payment and satisfaction of any and all amounts due underthe Second Amended Agreement with respect to all periods ending prior to, on orafter the Effective Time.

 

1.3                                 Releaseof Claims and Relinquishment of Rights

 

(a)                                  Asused in this Agreement:  (i) theterm **“Claim”** or **“Claims”** shall mean any and all causes ofaction, litigation, suits, controversies, exercise of warranties, proceedings,offsets, claims, demands, and/or any and all other

 

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actions, of any kind or nature whatsoever, inlaw, in equity, under contract or otherwise, known or unknown, direct orindirect, vested or contingent, reported or unreported, based on, arising from,or for the recovery of, any actual, threatened or alleged liabilities,responsibilities, obligations, costs, debts, sums of money, accounts,covenants, representations, agreements, warranties, attorneys’ fees, promises,contracts, trespasses, damages, judgments, executions, and/or any and all otherasserted basis, of any kind or nature, whatsoever; (ii) the term **“Affiliates”**, when referring to a party,shall mean such party’s parents, subsidiaries, affiliates, predecessors,successors, and assigns; and (iii) the term **“Representatives”**, when referring to a party or any of itsAffiliates, shall mean their respective officers, directors, employees, agentsand attorneys.

 

(b)                                 Inconsideration of the premises, mutual covenants and other consideration setforth in this Agreement, upon the occurrence of the Closing and effective as ofthe Effective Time, BNFL-USA, on behalf of itself and its Affiliates, and tothe fullest extent legally permitted, unconditionally releases and foreverdischarges Washington Group, its Affiliates, and their respectiveRepresentatives (collectively, the **“WashingtonGroup Parties”**), from any and all Claims which BNFL-USA and/or anyof its Affiliates now has, ever had or may have by reason of, arising out of,or relating in any way to the Original Agreement, the First Amended Agreement,the Supplemental Agreement, the Economic Rights Agreement, the Second AmendedAgreement, the Service Agreement and any of the agreements entered intopursuant to or in connection with the foregoing agreements, including withoutlimitation (i) any indemnification obligations contained therein and (ii) forthe avoidance of doubt, the Claims released under Section 3.5 of theSecond Amended Agreement; provided, however, that the foregoing release shallnot apply to any Claims arising as a result of a breach of this Agreement (and,for the avoidance of doubt, nothing herein shall affect or limit WashingtonGroup’s obligations under Section 2.4 below) or arising under any otheragreement that has been or may in the future be entered into between theparties and their Affiliates on or after the date of this Agreement, whichClaims shall be subject to the rights and remedies set forth herein or therein,as applicable. BNFL-USA further agrees that in no event shall it or any of itsAffiliates, directly or indirectly, assert any Claim against any of theWashington Group Parties based upon any matter purported to be releasedhereby.  Without in any way limiting theforegoing, the release set forth in this Section 1.3(b) shall applyto any and all Claims that BNFL-USA and/or any of its Affiliates may haverelating to or arising in connection with:

 

(i)                                     anyand all of the Payment Rights and/or other rights of BNFL-USA or its Affiliatesunder Articles 4.0, 5.0 and 7.0, and Sections 10.2, 10.3 and 10.4, of theSecond Amended Agreement; and

 

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(ii)                                  all guarantees by Washington Group and its Affiliates underthe Second Amended Agreement (collectively, the **“Washington Group Guarantees”**).

 

(c)                                  Inconsideration of the premises, mutual covenants and other consideration setforth in this Agreement, upon the occurrence of the Closing, and effective asof the Effective Time, Washington Group, on behalf of itself and itsAffiliates, and to the fullest extent legally permitted, unconditionallyreleases and forever discharges BNFL, BNFL-USA, their respective Affiliates(including, for the avoidance of doubt, BNSI and BNG America), and theirrespective Representatives (collectively, the **“BNFLParties”**), from any and all Claims which Washington Group and/or anyof its Affiliates now has, ever had or may have by reason of, arising out of,or relating in any way to the Original Agreement, the First Amended Agreement,the Supplemental Agreement, the Economic Rights Agreement, the Second AmendedAgreement, the Service Agreement and any of the agreements entered intopursuant to or in connection with the foregoing agreements, including but notlimited to (i) any indemnification obligations contained therein, (ii) forthe avoidance of doubt, the Claims released under Section 3.5 of theSecond Amended Agreement and (iii) any and all liabilities arising inconnection with or relating to WGS and WGES, whenever incurred or arising;provided, however, that the foregoing release shall not apply to any Claimsarising as a result of a breach of this Agreement or arising under any otheragreement that has been or may in the future be entered into between theparties and their Affiliates on or after the date of this Agreement, whichClaims shall be subject to the rights and remedies set forth herein or therein,as applicable. Washington Group further agrees that, in no event shall it orany of its Affiliates, directly or indirectly, assert any Claim against any ofthe BNFL Parties based upon any matter purported to be released hereby.  Without in any way limiting the foregoing,the release set forth in this Section 1.3(c) shall apply to any andall Claims that Washington Group and/or its Affiliates may have relating to orarising in connection with:

 

(i)                                     anyand all of the obligations of BNFL-USA or its Affiliates under Articles 4.0 and6.0 of the Second Amended Agreement, and any and all pre-existing definedbenefit obligations as provided for at Section 10.3 of the Second AmendedAgreement;

 

(ii)                                  all liabilities associated with the sale of EMD; and

 

(iii)                               all guarantees by BNFL and all of its Affiliates arising outof the Original Agreement, including the BNFL Consortium Guarantee, the WIPPContract Guarantee, the Corporate Guarantee of BNFL-USA dated March 22,1999 in favor of the United States

 

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Department ofEnergy (the “Corporate Guarantee”), and the Performance Guarantee of BNFL infavor of the United States Government relating to the Corporate Guarantee(collectively, the **“BNFL Guarantees”**).

 

In addition, for the avoidance of doubt,Washington Group, for itself and on behalf of all of its Affiliates,unconditionally and irrevocably releases and holds harmless the BNFL Partiesfrom any Claim by Washington Group or its Affiliates or subcontractors relatedin any way to work performed in connection with the Advanced Mixed WasteTreatment Project including, without limitation, work related to thepreparation of any claim or request for equitable adjustment thereunder;provided, however, that this release and hold harmless shall not (i) prohibitWashington Group or any of its Affiliates or subcontractors from pursuing anyclaims for indemnification that any of them had, has or may have against theU.S. Government under any nuclear hazards indemnity agreement or Public Law 85-804indemnification related in any way to work performed in connection with theAdvanced Mixed Waste Treatment Project or (ii) prohibit Washington Groupor any of its Affiliates from pursuing such claims against the U.S. Government.

 

1.4                                 AdditionalAgreements.  In addition to thematters set forth elsewhere herein, the parties hereby expressly agree asfollows:

 

(a)                                  SubcontractNot Terminated.  Notwithstandinganything to the contrary contained herein, the parties hereto acknowledge andagree that the following two agreements****relatingto the Savannah River Site shall in no way be affected by the transactionscontemplated by this Agreement and shall remain in full force and effectfollowing the Effective Time in accordance with their respective terms: (i) AgreementBetween Westinghouse Electric Corporation and BNFL Inc. with an effective dateof October 1, 1996, and (ii) WSRC — PS — BNFL – 96001, between BNFLSavannah River Corp. and Westinghouse Savannah River Company, mod 4 (for theavoidance of doubt, it is expressly understood by the parties hereto that suchtwo agreements shall be exclusively governed by their respective terms(including, without limitation, any and all disputes thereunder beingexclusively resolved pursuant to the terms of such agreements) and, in nomanner, be governed (including disputes resolved) pursuant to the terms of thisAgreement).

 

(b)                                 OtherAgreements. In view of the general termination of agreements provided forin Section 1.1 above, the parties hereto desire to expressly confirmcertain understandings that were previously reached in the agreementsterminated by Section 1.1 above and to provide for the continuedeffectiveness of such understandings. Unless expressly set forth below, all other rights and obligations ofthe parties reflected in the

 

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agreementsterminated by Section 1.1 are superseded by the provisions of thisAgreement.  The parties agree that thefollowing confirmations and understandings shall be contractually binding uponthem and no party hereto shall take any action inconsistent with suchconfirmations and understandings.

 

(i)                                     Rights andObligations With Respect to WGS. Notwithstanding anything in this Agreement to the contrary, the partiesacknowledge and agree that, effective as of July 31, 2004, BNFL-USA andBNSI unconditionally and irrevocably assigned to Washington Group their passiveeconomic right to receive a portion of the gains, profits and losses of WGS andthe WGS Operations and forever renounced any and all ownership interest in andto the contracts, employees, businesses and any and all other assets (together,the **“WGS Assets”**) which were atany time owned by, licensed to or otherwise held by WGS or itssubsidiaries.  Washington Group shallcontinue to possess all right, title and interest in and to the WGS Assets andshall at all times possess free and unfettered access to the WGS Assets for anyand all business opportunities and other uses. Washington Group continues to hold the sole and unfettered right tomodify the WGS Limited Liability Company Agreement including, withoutlimitation, the dissolution of WGS, in such manner as it deems appropriatewithin its full discretion.

 

(ii)                                  Rights andObligations With Respect to WGES. Notwithstanding anything in this Agreement to the contrary, the partiesacknowledge and agree that, effective as of July 31, 2004, BNFL-USA andBNSI unconditionally and irrevocably assigned to WGS their membership interestin WGES, together with all rights and obligations incidental to that membershipinterest and forever renounced any and all ownership interest in and to thecontracts, employees, businesses and any and all other assets (together, the **“WGES Assets”**) which were at any time ownedby, licensed to or otherwise held by WGES or its subsidiaries.  Washington Group shall possess all right,title and interest in and to the WGES Assets and shall at all times possessfree and unfettered access to the WGES Assets for any and all businessopportunities and other uses.  WashingtonGroup continues to hold the sole and unfettered right to modify the WGESLimited Liability Company Agreement including, without limitation, thedissolution of WGES, in such manner as it deems appropriate within its fulldiscretion.

 

(iii)                               Ownership of WELCOUnchanged. The parties acknowledge and agree that they previously reachedcertain understandings regarding the ownership and management of WELCO and thatnothing in this Agreement shall in any way amend or otherwise affect theownership or management of WELCO as it exists immediately prior to theEffective Time.

 

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1.5                                 Effectiveness

 

The rights and obligations of the parties toperform the pre-Effective Time actions under this Agreement (including withoutlimitation the obligations set forth in Section 2.0 below) shall becomeeffective upon the execution of this Agreement by the parties.  The termination of the Second AmendedAgreement, the releases of claims and relinquishment of rights provided for inthis Agreement, and any and all other matters that are to become effective asof the Effective Time shall, following consummation of the Closing provided forin Section 2.0, become effective as of the Effective Time.

 

2.0                                 TheClosing

 

2.1                                 Closing;Effective Time.  The closing of thetransactions contemplated by this Agreement (the **“Closing”**) shall take place at 10:00 a.m. EasternStandard Time on December 28, 2005 (or such other time as the partieshereto mutually agree).  None of theactions set forth in Section 2.2 shall be effective unless and until allof such actions shall have been taken or appropriately waived; but if all suchactions are taken or waived, then the Closing shall be effective as of 12:01 a.m.on December 31, 2005 (the **“EffectiveTime”**).

 

2.2                                 WashingtonGroup Closing Deliveries.  At theClosing, Washington Group shall deliver to BNFL-USA the following;

 

(a)                                  the Final Payment, in cash via wire transfer as provided in Section 1.2;and

 

(b)                                 such other documentation as may be reasonably necessary toeffect the intention of this Agreement and to consummate the transactionscontemplated hereby.

 

2.3                                 BNFL-USAClosing Deliveries.  At the Closing,BNFL-USA shall deliver to Washington Group the following;

 

(a)                                  a receipt, executed by BNFL-USA, acknowledging that it hasreceived the Final Payment; and

 

(b)                                 such other documentation as may be reasonably necessary toeffect the intention of this Agreement and to consummate the transactionscontemplated hereby.

 

2.4                                 OtherAgreements.  With respect to thoseagreements which would otherwise be terminated by Section 1.1 above butfor the fact that they include as signatories, in addition to the partieshereto, one or more unaffiliated third parties (such as, for example, theIntercreditor Agreement) (the **“Third PartyAgreements”**), Washington Group shall, within thirty (30) calendardays after the Closing,

 

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provide BNFL-USA with an instrument terminatingsuch Third Party Agreements or otherwise releasing BNFL-USA and/or its relevantAffiliates from any and all liabilities thereunder, signed by Washington Group,its Affiliates and such third parties, which BNFL-USA shall then sign and/orcause to be signed by any of its Affiliates that are parties thereto (andreturn an original to Washington Group) within five (5) business daysfollowing BNFL-USA’s receipt thereof.  Inthe event Washington Group is unsuccessful in causing any Third Party Agreementto be terminated and/or in causing any third party to such Third PartyAgreement to fully release BNFL-USA and its Affiliates from any and allliability thereunder, Washington Group shall indemnify and hold harmless theBNFL Parties from and against any and all Claims arising directly or indirectlyfrom or in connection with the assertion by or on behalf of any third party ofany Claim or other matter under or relating to any Third Party Agreement.  With respect to those agreements which wouldotherwise be terminated by Section 1.1 above but for the fact that theyare for the benefit of an unaffiliated third party whose consent to terminationis required (the “**Third Party Guarantees**”),Washington Group shall indemnify and hold harmless the BNFL Parties from andagainst any and all Claims arising directly or indirectly from or in connectionwith the assertion by or on behalf of any third party of any Claim or othermatter under or relating to any Third Party Guarantees.  With respect to those agreements which wouldotherwise be terminated by Section 1.1 above but for the fact that theyinclude as signatories, in addition to the parties hereto, one or more of theirrespective Affiliates, but no unaffiliated third parties (such as, for example,the Security Agreement and the Service Agreement) (the **“Affiliate Agreements”**), each party shallcause its respective Affiliates to execute a joinder to this Agreementevidencing the consent to the termination of the relevant Affiliate Agreement,effective as of the Effective Time.

 

2.5                                 FurtherAssurances.  In furtherance of themutual releases set forth in Sections 1.3(b) and (c) above, and tootherwise effect the intent of the parties regarding the transactionscontemplated hereby, the parties agree, at the Closing or as promptlythereafter as is reasonably practicable, and thereafter from time to time uponthe reasonable request of the other party, to execute, acknowledge, deliver orperform all such further documents, filings, acts and assurances as may berequired to effect the transactions contemplated by this Agreement.  Without in any way limiting the foregoing,the parties shall execute and file such Uniform Commercial Code terminationstatements as are necessary to reflect the termination of the SecurityAgreement and the release of the collateral secured thereunder.

 

3.0                                 ConfidentialInformation

 

3.1                                 Theparties acknowledge that, in order to carry out the purpose of the OriginalAgreement, the First Amended Agreement, Second Amended Agreement and the otheragreements entered into in connection therewith, it was necessary for them todisclose to the other party, and to such other party’s Affiliates, Confidential

 

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Information.  Therefore, this Section 3.0 shall applywith respect to any and all disclosures of Confidential Information made underthis Agreement or the aforementioned predecessor agreements.

 

3.2                                 Eachparty will treat the other party’s Confidential Information as confidential,will not disclose it to any other person (other than those of its and itsAffiliates’ Representatives who need to know such information for the purposeof carrying out the transactions contemplated by this Agreement) or use it forany purpose other than carrying out the transactions contemplated by thisAgreement.

 

3.3                                 The restrictionsimposed under this Section 3.0 shall remain in effect

 

(a)                                  withrespect to any Confidential Information that constitutes a “trade secret” (asdefined under the laws of the State of Delaware) of the disclosing party, solong as it remains a trade secret, or

 

(b)                                 with respect to other Confidential Information, for a periodof three (3) years following the date of this Agreement.

 

3.4                                 Therestrictions imposed under this Section 3.0 shall not apply to anyConfidential Information that

 

(a)                                  atthe time of disclosure is available in the public domain or is known to thereceiving party without breach of any obligation of confidentiality,

 

(b)                                 is subsequently disclosed by a third party to the receivingparty without any obligation of confidentiality, or

 

(c)                                  is independently developed by the receiving party withoutbreach of any obligation of confidentiality.

 

4.0                                 Miscellaneous

 

4.1                                 Definitions.  Capitalized terms used but not defined hereinshall have the respective meanings ascribed to them in the Second Amended Agreement,with the cross-reference established hereby to survive the termination thereof.

 

4.2                                 OtherActions. The parties will take all such other actions and will cause theirrespective Affiliates to take all such other actions as necessary to fulfill theintent of this Agreement.

 

4.3                                 GoverningLaw. This Agreement is governed by and shall be construed in accordancewith the law of the State of Delaware, without regard to its conflicts orchoice of laws provisions. With respect to any dispute between the parties withrespect to this Agreement, to the fullest extent permitted by applicable law,each party irrevocably submits to the exclusive jurisdiction of the state orfederal courts

 

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located in the State of Delaware and furtherwaives any objection which it may have at any time to the laying of venue ofany proceeding brought in any such court, waives any claim that such proceedinghas been brought in an inconvenient forum and further waives the right toobject, with respect to such proceeding, that such court does not havejurisdiction over such party.  Each partyfurther waives any right to trial by jury in any such proceeding.

 

4.4                                 Counterparts.  This Agreement may be executed in two or morecounterparts, all of which shall be considered one and the same agreement andshall become effective when one or more counterparts have been signed by eachof the parties and delivered (including by facsimile) to the other party.

 

4.5                                 BindingNature of Agreement.  Each partyhereby represents and warrants that it has obtained any necessary internal (*e.g.*, corporate governance or creditor)and external (*e.g.*, U.S.Department of Energy) approvals to enter into this Agreement, and that it hasthe requisite power and authority to execute and deliver this Agreement and toperform its obligations hereunder.  Tothe extent that certain provisions of this Agreement apply to the Affiliates ofWashington Group and BNFL-USA, each party shall cause its relevant Affiliate totake any action required of it hereunder or necessary for the relevant party tosatisfy its obligations hereunder.

 

4.6                                 Orderof Precedence.  This Agreement shalltake precedence over all other agreements between or among the parties and/ortheir respective Affiliates including, without limitation, the OriginalAgreement, the First Amended Agreement, the Economic Rights Agreement, theSupplemental Agreement, the Amended and Restated WGES Limited Liability CompanyAgreement, the Second Amended Agreement and the Services Agreement as to thematters covered by those agreements.

 

4.7                                 Invalidity.  In the event that any provision of thisAgreement is held invalid, (i) the validity of the remaining provisions ofthis Agreement shall not in any way be affected thereby and (ii) theparties will promptly enter into good faith negotiations to modify thisAgreement to replace the invalid provision(s) with new provision(s) that willas near as possible accomplish the purposes intended by such invalidprovision(s) in a manner such that the new provision(s) are jointly believed tobe such that they will survive any further validity challenge.

 

4.8                                 Waiverof Consequential Damages.  Eachparty, on behalf of itself and its Affiliates, releases the other party and itsAffiliates from any and all incidental, indirect, special, punitive andconsequential damages arising out of the matters covered by this Agreement.

 

4.9                                 EntireAgreement.  This Agreementconstitutes the entire agreement among the parties hereto with respect to thesubject matter hereof and thereof and supersedes

 

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allother prior and contemporaneous agreements and understandings both written andoral between the parties with respect to the subject matter hereof.

 

4.10                           PublicStatements.  Any and all pressreleases or general public statements of a similar nature made or to be made byany of the parties hereto concerning this Agreement shall be agreed to inadvance and by both parties prior to release to the general public.

 

4.11                           Notices.  Each party giving or making any notice,request, demand or other communication (each, a **“Notice”**) pursuant to this Agreement shall give the Notice inwriting and use one of the following methods of delivery, each of which forpurposes of this Agreement is a writing: personal delivery, Registered orCertified Mail (in each case, return receipt requested and postage prepaid),nationally recognized overnight courier (with all fees prepaid), or facsimile.Any Notice shall be addressed to the party to be notified as follows:

 

(a)          ifto Washington Group:

 

Washington Group International, Inc.

Energy & Environment

106 Newberry Street S.W.

Aiken, SC 29801

Attention: President (presently E. Preston Rahe, Jr.)

Facsimile No.:  803-502-9795

 

witha copy to:

 

Washington Group International, Inc.

720 Park Boulevard

Boise, ID 83871

Attention: General Counsel (presently RichardD. Parry, Esq.)

Facsimile No.:  208-386-5220

 

(b)         ifto BNFL plc or BNFL-USA:

 

John F. Edwards

Group Finance Director

British Nuclear Fuels plc

1100 Daresbury Park

Daresbury, Warrington

Cheshire WA4 4GB

United Kingdom

 

with a copy to:

 

Alvin J. Shuttleworth, Esq.

 

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Group Legal Director

British Nuclear Fuels plc

1100 Daresbury Park

Daresbury, Warrington

Cheshire WA4 4GB

United Kingdom

 

And:

 

BNG America

Crystal Gateway One

1235 South Clark Street

Suite 700

Arlington, VA 22202

Attention: Philip O. Strawbridge and JonathanP. Carter, Esq.

Facsimile No.: (703) 412-2567

 

4.12.                        Equitable Relief.  The obligations of the parties under Articles1.0 and 3.0 above and Sections 2.2, 2.3, 2.4 and 2.5 above shall, in the eventof a breach thereof, be specifically enforceable.  Each party understands, acknowledges andagrees that, in the event of any breach of any such obligations by any party,its Affiliates and/or its Representatives (**“BreachingParty”**): (i) the otherparty, its Affiliates and/or its Representatives (**“HarmedParty”**) will be irreparablyharmed by such breach; (ii) the performance of the Breaching Party’sobligations under any such Article or Section is material and centralto this Agreement and reasonable for such purpose; (iii) it would bedifficult or inadequate to measure and calculate the Harmed Party’s damages asa consequence of such breach; and (iv) money damages would not, alone, bea sufficient remedy for any breach of this Agreement.  As a consequence, the Breaching Party agreesthat:  (x) in addition to other remediesthat may be available, the Harmed Party shall be entitled to an injunction,specific performance or other appropriate equitable relief as a remedy for anysuch breach; (y) the Breaching Party shall, should the Harmed Party prevail inits pursuit of equitable relief, compensate the Harmed Party for any costs,including but not limited to attorneys’ fees and disbursements, incurred by theHarmed Party in enforcing its rights; and (z) such equitable relief shall notbe deemed to be an exclusive remedy for a breach of this Agreement but shall bein addition to all other remedies available at law or equity.  This Section 4.12 shall applynotwithstanding any other provision of this Agreement to the contrary.

 

**[Signaturepages follow]**

 

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**IN WITNESS WHEREOF**,the parties hereto have caused this Agreement to be executed and delivered bytheir duly authorized officers or agents, all as of the date first writtenabove.

 

 

**WASHINGTON GROUP INTERNATIONAL, INC.**

 

 
| **By:**                       | ** **/s/ Frank Finlayson              | ** ** |
|-------------------------------|--------------------------------------------|------------|
| Name:                         | Frank Finlayson                            |
| Title:                        | Senior Vice President, Project Development |
|                          |                                       |
|                          |                                       |
| **BRITISH NUCLEAR FUELS plc** |
|                          |                                       |
|                          |                                       |
| By:                           |  /s/  Alvin J. Shuttleworth           |       |
| Name:                         | Alvin J. Shuttleworth                      |
| Title:                        | Group Legal Director                       |
|                          |                                       |
|                          |                                       |
| **BNFL USA GROUP INC.**       |
|                          |                                       |
|                          |                                       |
| By:                           |  /s/  Alvin J. Shuttleworth           |       |
| Name:                         | Alvin J. Shuttleworth                      |
| Title:                        | Chairman                                   |

 

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