Exhibit 4.13
ASSIGNMENT OF INSURANCE
THIS AGREEMENT is made on 12 March 1998
BETWEEN:
(1) NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED, a public limited company
duly organized and validly existing under the laws of the Kingdom of
Thailand having its registered office at No. 9, UM Tower, 16th Floor,
Kwaeng Suanluang, Khet Suanluang, Bangkok, Thailand (the "Assignor");
(2) The financial institutions whose names are listed in Exhibit 1 (the "Thai
Lenders") represented by THE INDUSTRIAL FINANCE CORPORATION OF THAILAND, a
corporation duly organized and validly existing under the laws of the
Kingdom of Thailand having its registered office at No. 1770 New Petchburi
Road, Bangkok 10320, as Facility Agent for the Thai Lenders (the "Thai
Facility Agent");
(3) THE CHASE MANHATTAN BANK, a company duly organized and validly existing
under the laws of the State of New York, having its registered office at
450 West 33d Street, New York, New York, U.S.A., having its branch office
in Bangkok, Thailand, located at 20 North Sathom Road, Silom, Bangrak,
Bangkok 10500, acting as the Trustees and the Debenture Trustee (as
defined below);
AND
(4) THE CHASE MANHATTAN BANK as collateral agent (the "Collateral Agent").
WHEREAS:
A. The Assignor and the Thai Lenders entered into a credit facility agreement
dated 27 September 1995, (the "CFA") whereunder credit facilities of Baht
3,300,000,000 and US$308,000,000 have been granted;
B. The Assignor intends to procure financing from abroad by having NSM Steel
Company, Ltd. ("NSM Cayman"), a company incorporated under the laws of the
Cayman Islands and in which the Assignor holds 100 percent of its shares,
and NSM Steel (Delaware) Inc., a company incorporated under the laws of
the State of Delaware, the United States, a wholly owned subsidiary of NSM
Cayman (hereinafter collectively referred to as the "Note Issuers"),
acting as agent of NSM Cayman pursuant to an agency agreement, issue
US$452,500,000 of indebtedness comprised of (a) US$249,000,000 (aggregate
principal amount at maturity) of 12% Senior Mortgage Notes Due 2006 (the
"Senior Notes") which will be issued pursuant to an indenture dated as of
1 March 1998 (the "Senior Note Indenture", among the Note Issuers, the
Assignor and The Chase Manhattan Bank
("Chase"), as trustee (the "Senior Notes Trustee"), (b) the US$203,500,000
(aggregate principal amount at maturity) 12 1/4 Senior Subordinated
Mortgage Notes Due 2008 (the "Senior Subordinated Notes" and together with
the Senior Notes, the ("Notes"), which will be issued pursuant to an
indenture dated as of 1 March 1998 (the "Senior Subordinated Note
Indenture", and together with the Senior Note Indenture, the "Indentures")
among the Note Issuers and Chase, -as trustee (the "Senior Subordinated
Notes Trustee" and together with the Senior Notes Trustee, the "Trustee"),
with warrants to purchase 74,476,809 (Seventy Four Million Four Hundred
Seventy Six Thousand Eight Hundred and Nine) ordinary shares of the
Assignor, and (c) a private placement consisting of US$53,133,016
(aggregate principal amount at maturity) of 12 3/4% Subordinated Second
Mortgage Debentures Due 2009 (the "Debentures") which will be issued
pursuant to an indenture dated as of 1 March 1998 (the "Debenture
Indenture") among the Note Issuers, the Assignor and Chase, as trustee
(the "Debenture Trustee") and 64,417,180 ordinary shares of the Assignor;
C. The Assignor has entered into an amendment to the CFA (the "CFA
Amendment") with the Thai Lenders dated 12 March 1998 for the amendment of
certain terms and provisions to facilitate the Assignor's additional
financing (the CFA and the CFA Amendment, collectively, the "Bank Credit
Facility"), including but not limited to, an agreement the Assignor
entered into with the Thai Lenders, the Trustees and the Debenture Trustee
dated 12 March 1998 to set forth arrangements for the Thai Lenders and
holders of the Notes and the Debentures to share certain collateral (the
"Security Sharing Agreement").
D. Pursuant to the terms of the Security Sharing Agreement, the Assignor, the
Thai Facility Agent, the Trustees, the Debenture Trustee and the
Collateral Agent agree to enter into this Agreement as security for the
Obligations (as defined hereunder).
IT IS AGREED as follows:
1. DEFINITIONS
1.1 Except as otherwise provided herein, words and expressions in this
Agreement shall have the same respective meanings as described in the Bank
Credit Facility, the Indentures, the Debenture Indenture and the Security
Sharing Agreement:
"Additional Insurance" has the meaning ascribed to it in Clause 3.3;
"Assignment of Additional Insurance" means an assignment agreement
substantially in the form of this Agreement in relation to any Additional
Insurance;
"Insurance" means the insurance policies the details of which are set out in
Exhibit 2 and all Additional Insurance; and
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"Obligations" means all present and future obligations and liabilities of the
Assignor under the Bank Credit Facility, the Notes, the Indentures, the
Debentures, the Debenture Indenture, and the Security Sharing Agreement.
1.2 Any reference in this Agreement to:
(i) any agreement or document shall be read and construed as a reference
to such agreement or document as the same may have been or may from
time to time be, amended, varied. novated or supplemented; and
(ii) any party shall be construed so as to include its respective
successors, permitted assigns and transferees in accordance with its
respective interests;
1.3 Words denominating the singular include the plural and vice versa.
1.4 Section headings are for reference only.
2. ASSIGNMENT
2.1 To secure the due and punctual payment and performance by the Assignor of
the Obligations, the Assignor hereby assigns to the Collateral Agent for
the benefit of the Thai Lenders and the Trustees and the holders of the
Notes and the Debenture Trustee and the Debenture holders (as a second
priority lien):
(a) all of its rights, title, interest, in all proceeds of the
Insurance;
(b) all claims arising of any breach thereof; and
(c) all rights to terminate or suspend any Insurance.
2.2 Notwithstanding the assignment contained in Clause 2.1, the Assignor
shall at all times:
(a) remain liable to perform all of its obligations under the Bank
Credit Facility and, the Indentures and the Debenture Indenture; and
(b) remain liable to perform all of its obligations under and in
relation to the Insurance,
and nothing herein contained shall constitute or be deemed to constitute a
novation or settlement of any obligations (including, without limitation,
the Obligations) or indebtedness, nor shall it be construed as an
assumption or acceptance by the Thai Lenders, the Trustees or, as the case
may be, the Debenture Trustee (as a second priority lien) of any
obligation of the Assignor under the Insurance.
3. PERFECTION OF ASSIGNMENT
3.1 Immediately upon the execution of this Agreement, the Assignor shall give
notice to the issuer of each Insurance substantially in the form set out
in Part A of Exhibit 3 and shall
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use its reasonable efforts to procure that as soon as practicable each
issuer of an Insurance consents to the assignment and acknowledges receipt
of notice to the Collateral Agent in the form set out in Part B of Exhibit
3, or in such other form that may be reasonably acceptable to the
Collateral Agent.
3.2 Within two weeks upon the execution of this Agreement, the Assignor shall
submit to the Collateral Agent the original of each Insurance listed
herein.
3.3 Immediately upon the issue in favor of the Assignor of any other policy
replacing an insurance policy set out in Exhibit 2 following the date
hereof (each, an "Additional Insurance"), the Assignor irrevocably
undertakes to:
(a) notify the Collateral Agent that the Additional Insurance has been
issued and deliver to the Collateral Agent such number of certified
copies of the Additional Insurance as the Collateral Agent may
reasonably request;
(b) if requested by the Collateral Agent:
(i) enter into with the Thai Lenders, the Trustees, the Debenture
Trustees and the Collateral Agent an Assignment of Additional
Insurance in respect of the Additional Insurance of the same
and of the agreements contained in Clause 2.1 thereof, and use
reasonable efforts to procure that as soon as practicable such
Assignor acknowledges the same and consents to the assignment
contained therein in the form referred to in Clause 2.1 or
such other form as may be reasonably acceptable to the
Collateral Agent; and
(ii) submit to the Collateral Agent the original Additional
Insurance.
3.4 The Assignor shall comply with the terms set out in each of the notices
given pursuant to this Clause 3 and shall not take or omit to take any
action the taking or omission of which might otherwise result in the
material alteration or impairment of any of its obligations or the rights
of the Thai Lenders or, as the case may be, the Trustees, the Debenture
Trustee, the holders of the Debentures or the Collateral Agent, under or
pursuant to this Agreement.
3.5 Upon the occurrence of any event or circumstance whereby (but for this
Agreement) the Assignor would be entitled to make any claim under any
Insurance in respect of the rights, title and interests assigned pursuant
to this Agreement, the Assignor shall immediately notify the Collateral
Agent in writing of the details thereof and comply with the instructions of
the Collateral Agent with regard to such claim. The Collateral Agent shall,
if notified by the Assignor at any time prior to the issue of a Notice of
Actionable Default, cooperate with the Assignor to make such claim before
the expiry date of such Insurance.
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4. ENFORCEMENT
In accordance with the Security Sharing Agreement, at any time following the
receipt of a Notice of Actionable Default by the Collateral Agent and the
compliance with the provisions of Section 4 of the Security Sharing Agreement
(including, without limitation, Section 4.2(b) thereof), the Collateral Agent
may to the extent permitted by the relevant Insurance;
(a) exercise fully any rights assigned to or acquired by each of them pursuant
to this Agreement in all respects as though originally named as the
Assignor in the relevant Insurance;
(b) otherwise put into force and effect all rights, powers and remedies
available to it by law or otherwise as transferee of all or part of the
Assignor's rights, title and interest in and obligations under each
Insurance, which are transferred pursuant to this Agreement.
5. CONTINUING SECURITY
5.1 This Agreement and the assignment created by or pursuant hereto shall be
in addition to, independent of and without prejudice to, and shall not be
in substitution for or merge with any other rights, security, guarantee,
indemnity or suretyship now held or which may hereafter be held by the
Thai Lenders, the Trustees, the Debenture Trustee or, as the case may be,
the holders of the Notes or the Debentures, for the due payment and
performance by the Assignor of the Obligations.
5.2 This Agreement and the assignment is a continuing security and shall
remain in full force and effect notwithstanding the liquidation,
bankruptcy or other incapacity of the Assignor or any amalgamation or
reconstruction of the Assignor or any change in the constitution thereof
or any settlement of account, intervening payment or the extinction of any
or all indebtedness by whatever reason (other than by full performance and
discharge of the Obligations) or other matter or thing whatever.
5.3 If after the date of this Agreement:
(a) any settlement or discharge of any or all of the Obligations of the
Assignor is nullified for any reason whatsoever; and/or
(b) an order or judgment is made against the Thai Lenders, the Trustees,
the holders of the Notes, or, as the case may be, the Debenture
Trustee or the holders of the Debentures under Section 237 of the
Civil and Commercial Code of Thailand (or any modification or
re-enactment thereof) or under any of Sections 113, 114 and 115 of
the Bankruptcy Act of Thailand (or any modification or re-enactment
thereof) directing the Thai Lenders, the Trustees, the holders of
the Notes, or, as the case may be, the Debenture Trustee or the
holders of the Debentures, to pay any sum received or held by it
from the Assignor or any other person to settle all or part of the
debt of the Assignor to an official receiver, a liquidator or a
creditor of the Assignor,
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then the returned monies, losses, damages, costs and expenses of the Thai
Lenders, the Trustees, the holders of the Notes, or, as the case may be,
the Debenture Trustee or the Debenture holders arising as a result of such
nullified settlement or discharge, and/or (as the case may be) the sum
paid by it pursuant to such order or judgment shall be recoverable from
the Assignor on demand.
6. FURTHER ASSURANCE
6.1 The Assignor shall, whenever reasonably requested by the Collateral Agent
and at the cost and expense of the Assignor, promptly sign, seal, execute
and deliver such deeds, instruments, notices and documents, (including,
further legal or other transfers or assignments) and do such acts and
things as may be reasonably required by the Collateral Agent for the
purpose of maintaining, perfecting, protecting, defending, enforcing or
securing the obligations of the Assignor under this Agreement and the
encumbrances arising under or constituted by or pursuant to this Agreement
(or purported to be created by or constituted by or pursuant to this
Agreement) or for facilitating the exercise or, as the case may be,
realization thereof and the exercise of all other powers, authorities and
discretion vested in the Collateral Agent.
6.2 The Collateral Agent shall, without prejudice to other rights, powers and
privileges under this Agreement, be entitled (but shall be under no
obligation), at any time and as often as it may reasonably consider to be
necessary, to take any such action and/or demand additional documents and
instruments from the other party (in which case the Assignor undertakes to
use its best endeavors to procure such documents or instruments from such
person) for the purpose of protecting the rights constituted by this
Agreement.
6.3 The Assignor hereby agrees to indemnify the Thai Lenders, the Thai
Facility Agent, the Trustees, the Debenture Trustee and the Collateral
Agent against any and all costs, losses, expenses or liabilities incurred
by or imposed on Thai Lenders, the Trustees, the Debenture Trustee, the
Thai Facility Agent, and the Collateral Agent in or about the perfection
and/or protection of the rights and/or security interest referred to in
this Clause 6.
7. FILINGS, RECORDS, INSPECTION
Except as otherwise permitted hereunder, the Assignor shall not file -or
suffer to be on file, or authorize or permit to be filed or to be on file,
in any jurisdiction, any other encumbrance with respect to the Insurance
in which the Collateral Agent is not named as the sole first secured party
for the benefit of the Thai Lenders and the Trustees and the sole second
secured party for the benefit of the Debenture holders. The Assignor shall
permit representatives of the Collateral Agent upon reasonable notice, at
any time during normal business hours to inspect and make abstracts from
its books and records pertaining to the Bonds.
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8. APPLICATION OF PROCEEDS
8.1 The proceeds derived from the enforcement of any Insurance constituted by
or pursuant to this Agreement shall be applied towards settlement of the
Obligations in accordance with the terms of the Security Sharing
Agreement, the Bank Credit Facility and the Indentures. In the event that
such proceeds are insufficient to pay or set off all amounts to which the
Thai Lenders, the Trustees and the Debenture Trustee are entitled, the
Assignor shall be liable for the deficiency.
8.2 The proceeds of any collection or other realization of all or any part of
the Insurance pursuant hereto shall be applied by the Thai Lenders and/or
the Trustees and the Debenture Trustee in accordance with the provisions
of Section 6.3 of the Security Sharing Agreement.
9. REMEDIES AND WAIVERS
9.1 Any receipt, release or discharge of the assignment provided by, or of any
liability arising under, this Agreement may be given by the Collateral
Agent alone and shall not release or discharge the Assignor from any
liability for the same or any other moneys which may exist independently
of this Agreement. Where such receipt, release or discharge relates only
to part of the Insurance, such receipt, release or discharge shall not
prejudice or affect the assignment hereby created in relation to the
remainder of the Insurance.
9.2 The Collateral Agent may in its discretion grant time or other indulgence,
or make any other arrangement variation or release, with the Assignor or
any other person (whether or not party hereto and whether or not jointly
liable with the Assignor) in respect of all the obligations or of any
other security therefor or guarantee in respect thereof without prejudice
either to the assignment constituted by or pursuant to this Agreement or
to the liability of the Assignor for the Obligations.
9.3 The rights, powers and remedies provided in this Agreement are cumulative
and are not, nor are they to be construed as, exclusive of any rights,
powers and remedies provided by law.
9.4 No failure on the part of the Collateral Agent to exercise, or delay on
its or their part in exercising any of the rights, powers and remedies
provided for by this Agreement or by law shall operate as a waiver
thereof, nor shall. any single or partial waiver of any such rights,
powers or remedies preclude any further or other exercise of such rights,
power or remedies or the exercise of any other of such rights, powers or
remedies.
10. SUCCESSORS AND ASSIGNS
This Agreement shall be binding on and shall inure to the benefit of the
parties hereto and their respective successors, assignees and transferees,
provided that the Assignor may not assign or transfer all or any part of
its rights or obligations under this Agreement.
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11. RELEASE AND REASSIGNMENT
Immediately after the Assignor has finally paid and satisfied to the Thai
Lenders and the Trustees and the Debenture Trustee in full the
Obligations, the Collateral Agent shall, at the request and cost of the
Assignor, promptly reassign, without warranty, to the Assignor the rights,
title and interest assigned to it under this Agreement or such part of it
as then remains assigned in favour of the Thai Lenders, the Trustees and
the Debenture Trustee and/or release the encumbrances created pursuant
hereto, provided that any release, settlement, discharge or termination of
this Agreement and/or any such reassignment shall, unless otherwise agreed
in writing by the Collateral Agent in accordance with Section 17 of the
Security Sharing Agreement be upon the express condition that such
release, settlement, discharge, termination and/or reassignment shall
become void and of no effect and Clause 5.3 shall apply if any security or
payment on the faith of which such release, settlement, discharge,
termination and/or reassignment is given or made shall at any time
thereafter be nullified or subject to an order or judgement described in
Clause 5.3.
12. SEVERABILITY
If at any time any one or more of the provisions of this Agreement becomes
invalid, illegal or unenforceable in any respect under any law, the
validity, legality and enforceability of the remaining provisions of this
Agreement shall not in any way be affected or impaired thereby.
13. NOTICES
Any notice or communication under or in connection with this Agreement
shall be given in accordance with Section 12 of the Security Sharing
Agreement and the provisions of such agreement shall apply hereto mutatis
mutandis.
14. LAW
This Agreement shall be governed by and construed in accordance with the
laws of the Kingdom of Thailand.
15. AMENDMENTS
The terms of this Agreement may be waived, altered or amended only by an
instrument in writing duly executed by the Assignor and the Collateral
Agent in accordance with Section 17 of the Security Sharing Agreement.
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed.
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
By: /s/ Sawasdi Horrungruag By: /s/ Chamni Janchai
------------------------------- ----------------------------
Title: Chairman Title:
THE INDUSTRIAL FINANCE CORPORATION OF HAILAND
as Facility Agent for the Thai Lenders
By: /s/ [ILLEGIBLE]
-------------------------------
Title:
THE CHASE MANHATTAN BANK
as Trustees
By: /s/ [ILLEGIBLE]
-------------------------------
Title:
THE CHASE MANHATTAN BANK
as Collateral Agent
By: /s/ [ILLEGIBLE]
-------------------------------
Title:
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EXHIBIT I
The Thai Lenders
1. The Industrial Finance Corporation of Thailand
2. Thai Farmers Bank Public Company Limited
3. Siam City Bank Public Company Limited
4. The Government Savings Bank
5. First Bangkok City Bank Public Company Limited
6. Nakornthon Bank Public Company Limited
7. SCF Finance and Securities Public Company Limited
8. Siam City Credit Finance and Securities Public Company Limited
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EXHIBIT 2
Details of Insurance
1. Construction All Risks Third Party Liability & Delay In Start-up (with
Dhipaya Insurance PCL, Policy no. CWI. 0096/000032 and Nam Seng Insurance
PCL, Policy no. 002/5CWOO2/961);
2. Marine Cargo & Marine Consequential Loss / Attachment to and Forming Part
of Policy no. CWI. 0096/000032 [Endorsement no. CW. 0097/000150];
3. Attachment to and Forming Part of (the Marine Cargo) Open Cover no. 338/96
[Endorsement no. 004] (with Dhipaya Insurance PCL, End. No. 004 and Nam
Seng Insurance PCL, End. No. AM. 22/96); and
4. Attachment to and Forming Part of Policy no. CWI. 0096/000032 [Endorsement
no. CW. 0097/000128].
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EXHIBIT 3
Part A
Notice of Assignment
Date: 12 March 1998
To: Dhipaya Insurance Public Company Limited
65/1 Rama 9 Road
Huay Kwang, Bangkok 10320
Nam Seng Insurance Public Company Limited
[address]
Re: 1. Construction All Risks Third Party Liability & Delay In Start-up
(with Dhipaya Insurance PCL, Policy no. CWI. 0096/000032 and Nam
Seng Insurance PCL, Policy no. 002/5CWOO2/961);
2. Marine Cargo & Marine Consequential Loss / Attachment to and Forming
Part of Policy no. CWI. 0096/000032 [Endorsement no. CW.
0097/000150];
3. Attachment and Forming Part of (the Marine Cargo) Open Cover no.
338/96 [Endorsement no. 004] (with Dhipaya Insurance PCL, End. No.
004 and Nam Seng Insurance PCL, End. No. AM. 22/96); and
4. Attachment to and Forming Part of Policy no. CWI. 0096/000032
[Endorsement no. CW. 0097/000128].
Dear Sirs:
We hereby give you notice that pursuant to the Assignment of Insurance made
between Nakornthai Strip Mill Public Company (the "Assignor"), the Thai Lenders,
the Trustees, the Debenture Trustee and the Collateral Agent (as defined
therein) dated 12 March 1998 (the "Assignment"), a copy of which is attached,
the Assignor assigned on the date of the Assignment to the Collateral Agent on
behalf of the Thai Lenders, the holders of the Notes and the holders of the
Debentures (i) all of its rights, title and interest in all proceeds of the
Insurance; (ii) all claims arising of any breach thereof; and (iii) all rights
to terminate or suspend any Insurance. Words and expressions defined or referred
to in the Assignment shall have the same meanings when used herein, unless the
context requires otherwise.
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The assignment shall become effective and binding upon receipt of this Notice,
whereupon, the Collateral Agent shall acquire all rights, title and interest in
the Insurance identical to those of the Assignor.
This Notice shall not be revocable without the Collateral Agent's prior consent.
This Notice is governed by and construed in accordance with the laws of
Thailand.
Please acknowledge receipt of this Notice and confirm your agreement to the
Assignment in the form of acknowledgement attached hereto (the
"Acknowledgement") by signing and returning one copy of the Acknowledgment to
the Collateral Agent at The Chase Manhattan Bank, located at 20 North Sathorn
Road, Bangkok 10500 and another copy to the Assignor.
Yours faithfully,
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
as Assignor
By:
----------------------------------
Name:
Title:
We confirm our agreement with the foregoing.
THE CHASE MANHATTAN BANK
As Collateral Agent, for an on behalf of the
Thai Lenders, the Trustees and the Debenture Trustees
By:
----------------------------------
Name:
Title:
Attachment: Acknowledgment of the Issuer of Insurance
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Part B
Acknowledgment
To: THE CHASE MANHATTAN BANK
20 North Sathorn Road
Bangkok 10500
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
No. 9, UM Tower, 16' Floor
Kwaeng Suanluang, Khet Suanluang
Bangkok,
We hereby acknowledge receipt of a notice of assignment of which this is a copy
and consent and agree, for ourselves and our successors and assigns, to the
terms thereof and of the Assignment. Words and expressions defined or referred
to in the Assignment shall have the same meanings when used herein, unless the
context requires otherwise. We now undertake and confirm to you that:
(i) we agree to the Assignment and will give to the Collateral Agent notice of
any I breach of any agreement governing the Insurance by the Assignor as
soon as we become aware of it;
(ii) we will, upon our receipt of the Enforcement Notice, pay all amounts
payable by us in respect of the Insurance to such person or account as the
Collateral Agent may nominate from time to time;
(iii) we have not received any other notice of assignment nor consented to any
other assignment of rights to the Insurance;
(iv) we agree (in the event the assignment in Clause 2.1 of the Assignment
becomes effective) to the assignment of all rights of the Assignor to the
Collateral Agent pursuant to the Assignment and agree to sign such
documents as may be reasonably requested to record the said assignment;
(v) the Thai Lenders, the Trustees, the Debenture Trustee and the Collateral
Agent are not liable to perform any of the obligations assumed by the
Assignor under such Insurance nor liable for the consequences of
non-performance;
(vi) we agree to abide by all the terms and conditions of the Assignment and to
act accordingly upon our receipt of a written notice and/or instruction
from the Collateral Agent or any successor of the Collateral Agent;
(vii) we shall rely without enquiry on any notice given by the Collateral Agent
that the security created by the Assignment has become enforceable; and
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(ix) this Acknowledgement is governed by and construed in accordance with the
laws of Thailand.
Yours faithfully,
- --------------------------------
For and on behalf of
[o]
As Issuer of the Insurance
[Date]
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