Exhibit 1.01
EXECUTION COPY
NSM STEEL (DELAWARE), INC.
NSM STEEL COMPANY, LTD.
$225,594,000 (Gross Proceeds) 12% Senior Mortgage Notes Due 2006
$175,010,000 (Gross Proceeds) Representing 203,500 Units
Consisting of
12 1/4% Senior Subordinated Mortgage Notes Due 2008
with
Warrants to Purchase 128,834,356 Ordinary Shares of
Nakornthai Strip Mill Public Company Limited
PURCHASE AGREEMENT
March 2, 1998
NATWEST CAPITAL MARKETS LIMITED
MCDONALD & COMPANY SECURITIES, INC.
PAINEWEBBER INCORPORATED
ECT SECURITIES CORP.
c/o Gleacher NatWest Inc.
660 Madison Avenue
New York, N.Y. 10021
Dear Sirs:
1. Introductory. NSM Steel (Delaware) Inc. ("NSM(Del)") and NSM Steel
Company, Ltd. ("NSM Cayman" and, together with NSM (Del), the "Note Issuers"),
propose, subject to the terms and conditions stated herein, to issue and sell to
the several initial purchasers named in Schedule A hereto (the "Purchasers") (i)
$249,000,000 aggregate principal amount at maturity of 12% Senior Mortgage Notes
Due 2006 (the "Senior Notes") and (ii) $175,010,000 (Gross Proceeds)
representing 203,500 Units (the "Units"), each consisting of a $1,000 principal
amount at maturity 12 1/4% Senior Subordinated Mortgage Note Due 2008
(collectively, the "Senior Subordinated Notes") with 633.09266 warrants
(collectively, the "Warrants") each to purchase one ordinary shares, par value
10 Baht per share (collectively, "Ordinary Shares"), of Nakornthai Strip Mill
Public Company Limited (the "Company" and, together with the Note Issuers, the
"Issuers"). The Senior Notes and the Senior Subordinated Notes are collectively
referred to herein as the "Offered Notes", and the Offered Notes, the Units and
the Warrants are collectively referred to herein as the "Offered Securities". In
connection with, and concurrently with the consummation of, the issuance and
sale of the Offered Securities, the Issuers propose to
consummate (i) a private placement consisting of U.S. $53,133,016 aggregate
principal amount at maturity of 12 3/4% Subordinated Second Mortgage Debentures
Due 2009 (the "Debentures") and (ii) private placements of 158,639,864 Ordinary
Shares (the "Private Shares") in the aggregate. Capitalized terms used but not
defined herein have the respective meanings specified therefor in the Offering
Document (as defined below)).
The Senior Notes will be irrevocably and unconditionally guaranteed (the
"Senior Guaranty") as to principal, premium, interest and Additional Amounts (as
defined in the Indentures (as defined below), if any, by the Company. The Senior
Subordinated Notes will be irrevocably and unconditionally guaranteed (the
"Senior Subordinated Guaranty" and, together with the Senior Guaranty, the
"Guaranties") as to principal, premium, interest and Additional Amounts, if any,
by the Company. The Senior Notes will be issued under an indenture dated as of
March 1, 1998 (the "Senior Note Indenture"), among the Note Issuers, the Company
and The Chase Manhattan Bank ("Chase"), as trustee (the "Senior Notes Trustee").
The Senior Subordinated Notes will be issued pursuant to an indenture, to be
dated as of March 1, 1998 (the "Senior Subordinated Note Indenture" and,
together with the Senior Note Indenture, the "Indentures"), among the Issuers
and Chase, as trustee (the "Senior Subordinated Notes Trustee" and, together
with the Senior Notes Trustee, the "Trustees"). The Warrants will be issued
under a warrant agreement dated as of March 12, 1998 (the "Warrant Agreement"),
between the Company and American Stock Transfer & Trust Company, as warrant
agent (the "Warrant Agent"). The United States Securities Act of 1933 is herein
referred to as the "Securities Act".
To secure their respective obligations under the Offered Notes, the
Guaranties and the Security Documents (as defined in the Offering Document), on
the date of original issue of the Offered Securities (the "Closing Date"): (i)
NSM Cayman will charge to the Trustees (as defined) all its right, title and
interest in all the shares of capital stock of NSM (Del) ("Pledged NSM (Del)
Stock"); (ii) the Company will pledge and assign to Chase, as collateral agent
(in such capacity, the "Collateral Agent") all its right, title and interest in
the share capital of NSM Cayman ("Pledged NSM Cayman Stock" and, together with
the Pledged NSM (Del) Stock, the "Pledged NSM Stock"); (iii) the Company will
grant a mortgage in the land and buildings comprising the Mill, except the
Co-Gen Facility; (iv) the Company will grant a security interest in the proceeds
in the Offshore Reserve Account and the Notes DSR Account; (v) the Company will
grant a pledge in all machinery and equipment located at the Mill, and later,
for Registrable Machinery, converted to a machinery mortgage; (vi) the Company
will grant an assignment and/or designation as co-beneficiary of insurance
policies covering the Mill and an assignment of all reinsurance (the "Insurance
Proceeds"); (vii) the Company will grant a conditional assignment in the rights
and benefits under the Project Documents; (ix) the Company will grant a
conditional assignment and pledge of the Operating Account, Revenue Account
(including without limitation the Offshore Sub-account) and Notes Sinking Fund
Account upon the terms set forth in a pledge of accounts agreement of even date
herewith (the "Pledge of Accounts Agreement"), between the Company and the
Collateral Agent; (x) the Company will grant a pledge of Permitted Investments;
and (xi) the Company will grant an assignment of the Performance Bonds (the
collateral described in clauses (iii)-(xi) above being herein referred to as the
"Closing Date Collateral").
The respective rights in the Closing Date Collateral of the holders of the
Offered Notes the holders of the Debentures and the Thai lenders under the Bank
Credit Facility, will be governed by the terms of a Security Sharing Agreement
dated as of March 12, 1998 (the "Security Sharing Agreement"), among the
Collateral Agent; the Book-Entry Depositary; the Company; the Industrial Finance
Corporation of Thailand, Thai Farmers Bank Public Company Limited, Siam City
Bank Public Company Limited, The Government Savings Bank, First Bangkok City
Bank Public Company Limited, Nakornthon Bank Public Company Limited, SCF Finance
and Securities Public Company Limited, Siam City Credit Finance and Securities
Public Company Limited, IFCT Finance and Securities Public Company Limited and
First City Investment
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Finance and Securities Public Company Limited (collectively, the "Thai
Lenders"); and the holders of the Debentures.
The Issuers hereby agree, jointly and severally, with the several
Purchasers as follows:
2. Representations and Warranties of the Issuers. The Issuers represent
and warrant to, and agree with, jointly and severally, the several Purchasers
that:
(a) A preliminary offering circular, a supplement to the preliminary
offering circular and an offering circular relating to the Offered
Securities to be offered by the Purchasers have been prepared by the
Issuers. Such preliminary offering circular, supplemental offering
circular and offering circular, as supplemented as of the date of this
Agreement, together with any other document approved by the Issuers for
use in connection with the contemplated resale of the Offered Securities
are hereinafter collectively referred to as the "Offering Document". On
the date of this Agreement, the Offering Document does not include any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from the Offering
Document based upon written information furnished to the Issuers by any
Purchaser through NatWest Capital Markets Limited ("NatWest") specifically
for use therein, it being expressly understood and agreed that the only
such information is that described as such in Section 7(b) hereto.
(b) Each of the Issuers has been duly incorporated and is a validly
existing corporation, in the case of NSM Cayman and NSM (Del), in good
standing under the laws of its jurisdiction of incorporation, and in the
case of the Company, with perpetual corporate existence under the laws of
Thailand, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Offering Document;
and each of the Issuers is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires
such qualification, except where a failure to be so qualified would not
individually or in the aggregate, have a material adverse effect on (i)
the ability of the Note Issuers or the Company to perform its obligations
under the Indentures, the Registration Rights Agreement, the Offered
Securities, this Agreement, the Note Depositary Agreement, the Warrant
Agreement, the Security Sharing Agreement, the Pledge of Accounts
Agreement or the other Security Documents (collectively, the "Transaction
Documents"), or (ii) the general affairs, management, business, financial
condition, prospects or results of operations of the Mill or the Issuers
(in either of the cases described in clauses (i) and (ii), a "Material
Adverse Effect").
(c) All of the outstanding shares of capital stock of the Issuers
have been duly authorized and validly issued and are fully paid (other
than shares of the Company newly issued, and expected to be paid for, on
the Closing Date), nonassessable and not subject to any preemptive or
similar rights granted by the Company and conform in all material respects
to the description thereof contained in the Offering Memorandum.
(d) Except for the Warrants, there are no, and as of the Closing
Date there will
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be no, outstanding securities or obligations (together, "Convertible
Securities") of the Company or any of its subsidiaries convertible into or
exchangeable for any capital stock of the Company or any of its
subsidiaries, nor rights, warrants or options (collectively, "Rights") to
subscribe for or purchase from the Company or any of its subsidiaries any
such capital stock or any such Convertible Securities or obligations, nor
obligations of the Company or any of its subsidiaries to issue Convertible
Securities or Rights.
(e) Each of the Indentures (including the Guaranties) and the
Security Documents has been duly authorized; the Offered Notes, the
Exchange Securities (as defined in the registration rights agreement of
even date herewith among the Issuers and the Purchasers (the "Registration
Rights Agreement")), the Registration Rights Agreement and the Debentures
have been duly authorized; and, in the case of the Offered Notes, when
delivered and paid for pursuant to this Agreement on the Closing Date, or,
in the case of the Exchange Securities, when issued in exchange for the
Offered Notes pursuant to the terms of the Registration Rights Agreement
and the Indentures, each of the Indentures (including the Guaranties), the
Registration Rights Agreement and the Security Documents will have been
duly executed and delivered and will conform in all material respects to
the description thereof contained in the Offering Document, such Offered
Notes and Exchange Securities will have been duly executed, authenticated,
issued and delivered and will conform in all material respects to the
description thereof contained in the Offering Document, and each of the
Indentures (including the Guaranties), the Registration Rights Agreement
and the Security Documents, and such Offered Notes and Exchange Securities
will constitute valid and legally binding obligations of the Issuers, as
the case may be, enforceable in accordance with their terms, except as (x)
the enforceability thereof may be limited by bankruptcy, reorganization,
insolvency, fraudulent conveyance or similar laws affecting creditors'
rights generally and the defenses of set-off or counterclaim, and (y)
rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability and (2) the
validity and enforceability of any term of subordination of the Senior
Subordinated Note Indenture. The Security Documents conform in all
material respects to the description thereof contained in the Offering
Document. On the Closing Date, upon the execution and delivery of the
Security Sharing Agreement and upon delivery to the Collateral Agent of
certificates evidencing the Pledged NSM Stock, the Security Sharing
Agreement and the other Security Documents will subject to the
registration of the mortgages of land, buildings and Registrable
Machinery, create valid, first priority perfected security interests in
the Pledged NSM Stock and the Closing Date Collateral securing the Offered
Notes and the Guaranties in accordance with the terms thereof and the
Pledged NSM Stock and the Closing Date Collateral will be free and clear
of all liens, except those liens created by or pursuant to the Security
Documents or as otherwise contemplated by the Security Sharing Agreement.
The Pledged NSM Stock and the Closing Date Collateral for the Offered
Notes and the Guaranties consist of all the real and personal property of
the Issuers.
(f) The Note Issuers have full power and authority to authorize,
issue and sell the Debentures pursuant to the purchase agreement therefor
(the "Debentures Agreement") and the Company has full power and authority
to authorize, issue and sell the Private Shares pursuant to the
subscription agreements therefor (the "Subscription Agreements"). Each of
the Debentures Agreement and the Subscription Agreements has been duly
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authorized by the Issuers party thereto and when duly executed and
delivered by the Issuers (assuming due authorization, execution and
delivery by the counterparties thereto), will be a valid and legally
binding obligation of the applicable Issuers, enforceable against such
Issuers in accordance with its terms, except as (x) the enforceability
thereof may be limited by bankruptcy, reorganization, insolvency,
fraudulent conveyance or similar laws affecting creditors' rights
generally and (y) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability
and (z) rights to indemnity and contribution thereunder may be limited by
the federal securities laws of the United States of the securities laws of
any State thereof or the policy underlying such laws.
(g) The Note Depositary Agreement (as described in the Offering
Document) has been duly authorized by the Issuers and when duly executed
and delivered by the Issuers (assuming due authorization, execution and
delivery by the Book-Entry Depositary), will be a valid and legally
binding obligation of the Issuers, enforceable against the Issuers in
accordance with its terms, except as (x) enforceability thereof may be
limited by bankruptcy, reorganization, insolvency, fraudulent conveyance
or similar laws affecting creditors' rights generally and the defenses of
set-off or counterclaim, and (y) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles
of general applicability. With respect to the foregoing, the Issuers make
no representation or warranty with respect to the indemnification
provisions contained in the Note Depositary Agreement to the extent they
are deemed by a court of law to be contrary to public policy.
(h) The Warrant Agreement has been duly authorized by the Company;
the Warrants have been duly authorized by the Company; and when the
Warrants are delivered and paid for pursuant to this Agreement on the
Closing Date, the Warrant Agreement will have been duly executed and
delivered by the Company, such Warrants and the Warrant Agreement will
conform in all material respects to the description thereof contained in
the Offering Document and the Warrant Agreement and the Warrants will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, except as (x) the
enforceability thereof may be limited by bankruptcy, reorganization,
insolvency, fraudulent conveyance or similar laws affecting creditors'
rights generally, (y) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability and (z) rights to indemnity and contribution thereunder may
be limited by the federal securities laws of the United States or the
securities laws of any State thereof or the public policy underlying such
laws.
(i) The Company has full power and authority to execute, deliver and
perform its obligations under the Management Agreement, the Shareholders
Agreement, the SDI Agreement, the Agency Agreement, the SDI License
Agreement, the Off-Take Agreements, the Sriarcha Harbor Agreement, the New
Employment Agreement, the Working Capital Credit Facility, the Coal Supply
Agreement and the Iron Ore Fines Supply Agreement (each as described in
the Offering Document and collectively, the "Project Documents"). Each of
the Project Documents has been duly authorized by the Company and when
duly executed and delivered by the Company (assuming due authorization,
execution and delivery by the counterparties thereto), will be a valid and
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legally binding obligation of the Company, enforceable against the Company
in accordance with its terms, except as (x) the enforceability thereof may
be limited by bankruptcy, reorganization, insolvency, fraudulent
conveyance or similar laws affecting creditors' rights generally and the
defense of set-off or counterclaim and (y) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles
of general applicability. The statements in the Offering Document insofar
as they describe the provisions of the Project Documents constitute fair
summaries thereof, accurate in all material respects.
(j) The Warrants are convertible into the underlying Ordinary Shares
in accordance with their terms; such underlying shares initially issuable
upon exercise of such Warrants have been duly authorized and reserved for
issuance upon such exercise and, when issued upon such exercise, will be
validly issued, fully paid and nonassessable and conform in all material
respects to the description thereof contained in the Offering Document;
the Private Shares have been duly authorized and, when issued on the
Closing Date, will be validly issued, fully paid and nonassessable and
conform in all material respects to the description thereof contained in
the Offering Document; and the stockholders of the Company have no
preemptive or similar rights with respect to the Warrants, the underlying
Ordinary Shares or the Private Shares.
(k) The Pledge of Accounts Agreement has been duly authorized by the
Company and when duly executed and delivered by the Company, will be a
valid and legally binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as (x) the enforceability
thereof may be limited by bankruptcy, reorganization, insolvency,
fraudulent conveyance or similar laws affecting creditors' rights
generally and (y) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(l) Assuming the accuracy of the representations and warranties of
the Purchasers contained in Section 4, no consent, approval,
authorization, permission, or order of, or filing with, any governmental
agency or body or any court is required for the consummation of the
transactions contemplated by this Agreement in connection with the
issuance and sale of the Offered Securities by the Issuers and the
issuance of the Guaranties by the Company, or for the execution, delivery
and performance of any of the Indentures, the Security Documents
(including the exercise by the Collateral Agent of the rights and remedies
granted to it under any of the Security Documents), the Warrant Agreement,
the Security Sharing Agreement, this Agreement, the Registration Rights
Agreement, the Debentures Agreement, the Subscription Agreements or the
Project Documents except such as may be required under state securities
laws and except for such filings with the Securities and Exchange
Commission (the "Commission") as are required in connection with the
Registration Rights Agreement, and except for the filing and registration
of the mortgage of land and buildings comprising the Mill and the filing
and registration of the mortgage of Registrable Machinery (as defined in
the Offering Document) with the local Land Office in Thailand and except
for the exchange control approval from the authorized agent of the Bank of
Thailand with respect to the purchase and remittance of foreign currency
out of Thailand and except for those the failure of which to obtain would
not, individually or in the aggregate, have a Material Adverse
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Effect nor have a material adverse effect on the ability of the Note
Issuers or the Company to perform its obligations under the Debentures
Agreement, the Subscription Agreements or the Project Documents.
(m) Each of this Agreement and the Registration Rights Agreement has
been duly authorized, executed and delivered by the Issuers, and is
enforceable in accordance with its terms, except (x) the enforceability
thereof may be limited by bankruptcy, reorganization, insolvency,
fraudulent conveyance or similar laws affecting creditors' rights
generally, (y) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability
and (z) rights to indemnity and contribution thereunder may be limited by
the federal securities laws of the United States or the securities laws of
any State thereof or the public policy underlying such laws.
(n) The execution, delivery and performance of the Indentures
(including the Guaranties), the Warrant Agreement, the Security Sharing
Agreement, this Agreement, the Registration Rights Agreement, the Pledge
of Accounts Agreement, the other Security Documents, the Debentures
Agreement, the Subscription Agreements and the Project Documents and the
issuance and sale of the Offered Securities, the Debentures and the
Private Shares and compliance with the terms and provisions of each of the
foregoing will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, (i) assuming compliance with
all applicable securities or "blue sky" laws of the United States or any
state thereof and assuming the accuracy of the representations and
warranties of the Purchasers in Section 4, any statute, rule, regulation
or order of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Issuers or any of their respective
properties, (ii) assuming execution and delivery of the Thai Lenders of
the CFA Amendment and the release of the liens in connection therewith,
any agreement or instrument to which any of the Issuers is a party or by
which any of the Issuers is bound or to which any of the properties of the
Issuers is subject, except such breaches, violations, or defaults that
would not reasonably be expected to result in, individually or in the
aggregate, a Material Adverse Effect or (iii) the charter, bylaws or
memorandum and articles of association of the Issuers; and each of the
Issuers has full power and authority to authorize, issue and sell the
Offered Securities, and the Company has full power and authority to
authorize and issue the Guaranties, as contemplated by this Agreement and
the Offering Document.
(o) No material amounts of withholding tax imposed under the laws of
Thailand or the Cayman Islands will be payable in respect of the issuance
and sale to the Purchasers of the Offered Securities as contemplated by
this Agreement, including the payment or crediting of any discount,
commission or fee to any Purchaser, or the resale of the Offered
Securities by the Purchasers to U.S. residents; except that interest
payments under the Notes paid from or in Thailand may be subject to
withholding tax at the rate of 15%, in which case the Company will pay
Additional Amounts as may be necessary so that every net payment of the
principal of and interest on the Notes paid to the holder thereof will not
be less than the amount provided for in such Notes to be then due and
payable. The provisions in relation to the obligation of the Company to
pay Additional Amounts in respect of withholding tax are valid and
enforceable under Thai law.
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(p) No stamp duty, registration or documentary taxes, duties or
similar charges are payable under the laws of Thailand or the Cayman
Islands in connection with the creation, issuance, sale and delivery to
the Purchasers of the Offered Securities or the authorization, execution
and delivery of the Transaction Documents, the Debentures Agreement, the
Subscription Agreements or the Project Documents to which the Issuers are
a party or the resale of the Offered Securities by the Purchasers to U.S.
residents, except (i) for the transfer of Warrants, if the instrument of
transfer is executed in Thailand, (ii) the Transaction Documents, if they
are executed in, or after execution brought within, the jurisdiction of
the Cayman Islands and (iii) the Management Agreements, under which fees
payable will be subject to stamp duty in Thailand at the rate of 0.1%.
(q) All security interests (including security interests of the Thai
Lenders) in the Closing Date Collateral, other than those created pursuant
to the Security Documents or contemplated by the Security Sharing
Agreement, will have been terminated and released on or prior to the
Closing Date except where the failure to so terminate or release does not
affect the validity of the Security Documents or the practical realization
of the rights and benefits intended to be afforded thereby.
(r) At the Closing Date, each of the Issuers will have good and
marketable title to all properties and assets described in the Offering
Document as owned by them, in each case free from liens, encumbrances and
defects (other than such liens, encumbrances and defects created under the
Security Documents or contemplated by the Security Sharing Agreement) that
would affect the value thereof or interfere with the use made or to be
made thereof by them, except as described in the Offering Document or to
the extent the failure to have such title or the existence of such liens,
charges, encumbrances or defaults would not, individually or in the
aggregate, have a Material Adverse Effect.
(s) Each of the Issuers possesses (or, if not currently required to
possess, has submitted applications for) all adequate certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated, or contemplated in
the Offering Document to be operated, by them and has not received any
notice of proceedings relating to the revocation or modification of any
such certificate, authority or permit, except for those the failure of
which to obtain would not individually or in the aggregate, have a
Material Adverse Effect.
(t) Except as would not, individually or in the aggregate, have a
Material Adverse Effect, none of the Issuers is in violation of any
statute, rule, regulation, decision or order of any governmental agency or
body or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "environmental laws"), owns or operates any real
property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or contamination
pursuant to any environmental laws, or is subject to any claim relating to
any environmental laws; and neither the Note Issuers nor the Company are
aware of any pending investigation which might lead to such a claim.
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(u) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or affecting the Issuers or
any of their respective properties that, if determined adversely to the
Issuers, would, individually or in the aggregate, have a Material Adverse
Effect, or would materially and adversely affect the ability of the
Issuers to perform their respective obligations under the Debentures
Agreement, the Subscription Agreements or the Project Documents, or which
are otherwise material in the context of the sale of the Offered
Securities, the Debentures or the Private Shares; and no such actions,
suits or proceedings are threatened or, to the Issuers' knowledge,
contemplated.
(v) The assumptions used in preparing, and the estimates disclosed
in, the forecasted financial information in the Offering Document under
the caption "Certain Financial Projection Information" have been properly
compiled on the bases described therein and are based on good faith
estimates and assumptions believed by the Issuers to be reasonable as of
the date hereof, it being recognized that such financial projections as to
future events are not to be viewed as facts and that actual results during
the period or periods covered by any such projections may vary from the
projected results and such variations may be material.
(w) There has occurred no development or event involving a
prospective material adverse change in the condition (financial or other),
business, properties or results of operations of the Mill or the Issuers
taken as a whole from that set forth in the Offering Document, and there
has been no dividend or distribution of any kind declared, paid or made by
the Issuers on any class of their respective capital stock.
(x) None of the Issuers is an open-end investment company, unit
investment trust or face-amount certificate company that is or is required
to be registered under Section 8 of the United States Investment Company
Act of 1940 (the "Investment Company Act"), nor are any of them a
closed-end investment company required to be registered, but not
registered, thereunder; and none of the Issuers is and, after giving
effect to the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the Offering Document,
will be, an "investment company" as defined in the Investment Company Act.
(y) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Offered Securities are listed
on any national securities exchange registered under Section 6 of the
Exchange Act, or quoted in a U.S. automated inter-dealer quotation system.
(z) Assuming the accuracy of the representations and warranties of
the Purchasers in Section 4, the offer and sale of the Offered Securities
in the manner contemplated by this Agreement will be exempt from the
registration requirements of the Securities Act; and prior to the
effectiveness of a registration statement as contemplated in the
Registration Rights Agreement, it is not necessary to qualify an indenture
in respect of the Offered Notes under the United States Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act").
(aa) Assuming the accuracy of the representations and warranties of
the
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Purchasers in Section 4, neither the Issuers nor any of their affiliates,
nor any person acting on their behalf (i) has, within the six-month period
prior to the date hereof, offered or sold in the United States or to any
U.S. person (as such terms are defined in Regulation S under the
Securities Act) the Offered Securities or any security of the same class
or series as the Offered Securities or (ii) has offered or will offer or
sell the Offered Securities (A) in the United States by means of any form
of general solicitation or general advertising within the meaning of Rule
502(c) under the Securities Act or (B) with respect to any such securities
sold in reliance on Rule 903 of Regulation S ("Regulation S") under the
Securities Act, by means of any directed selling efforts within the
meaning of Rule 902(b) of Regulation S. Assuming the accuracy of the
representations and warranties of the Purchasers in Section 4, the
Issuers, their affiliates and any person acting on their behalf have
complied and will comply with the offering restrictions requirement of
Regulation S. The Issuers have not entered and will not enter into any
contractual arrangement with respect to the distribution of the Offered
Securities except for this Agreement and the Registration Rights
Agreement.
(bb) The proceeds to the Note Issuers from the offering of the
Offered Securities, the Debentures and the Private Shares will be used as
described in the Offering Document.
(cc) Peat Marwick Suthee Limited ("KPMG"), a member firm of KPMG
Peat Marwick, are independent certified public accountants with respect to
the Company as required by the Securities Act and the Rules and
Regulations. The historical financial statements (including the related
notes and supporting schedules) contained in the Offering Document comply
in all material respects with the applicable requirements under the
Securities Act and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"); such financial statements have been prepared in
accordance with generally accepted accounting principles in Thailand
("Thailand GAAP") consistently applied throughout the periods covered
thereby and fairly present the financial position of the entities
purported to be covered thereby at the respective dates indicated and the
results of their operations and their cash flows for the respective
periods indicated; and the financial information contained in the Offering
Document under the headings "Summary--Summary Financial and Pro Forma
Information," "Capitalization," "Selected Financial Data," "Management's
Discussion and Analysis of Financial Conditions" and
"Management--Compensation of Directors and Executive Officers" are derived
from the accounting records of the Company and fairly present the
information purported to be shown thereby. The historical financial and
statistical information and data included in the Offering Document are, in
all material respects, fairly presented. Notes 20 and 21 of the historical
financial statements included in the Offering Document present fairly all
adjustments necessary to reconcile the financial statements to United
States generally accepted accounting principles ("US GAAP") and include
and present fairly all other material disclosures required by US GAAP.
(dd) The Issuers maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with Thai GAAP and US
GAAP and
11
to maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(ee) The Company maintains, or will obtain pursuant to the
provisions of the Security Documents, with reputable insurance companies,
insurance on the Closing Date Collateral and substantially all of its
other insurable property, in such amounts and against such risks as is
normally carried by corporations engaged in the same or similar businesses
in the Kingdom of Thailand as the Company. All such policies are only
subject to deductibles and exclusions which are typical for similarly
situated companies. The Company has not received notice from any insurer
or agent of such insurer that capital improvements or other expenditures
are required or necessary to be made in order to continue such insurance.
(ff) The Company owns or possesses adequate rights to use all
material patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service mark registrations, copyrights,
licenses and know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures) necessary to carry on its business as presently conducted,
except where the failure to own or possess the same would not,
individually or in the aggregate, have a Material Adverse Effect, and the
Company has not received any notice of infringement of or conflict with
asserted rights of others with respect to the foregoing which, singly or
in the aggregate, if the subject of any unfavorable decision, ruling or
finding, have a Material Adverse Effect.
(gg) No labor disturbance by or dispute with the employees of the
Company exists or, to the best knowledge of the Company, is contemplated
or threatened that, individually or in the aggregate, would have a
Material Adverse Effect.
(hh) On and immediately after the Closing Date, the Company (after
giving effect to the issuance of the Offered Securities and to the other
transactions related thereto as described in the Offering Document) will
be Solvent. As used in this paragraph, the term "Solvent" means, with
respect to a particular date, that on such date (i) the Company is able to
realize upon its assets and pay its debts and other liabilities,
contingent obligations and commitments as they mature and become due in
the normal course of business, and (ii) assuming the sale of the Offered
Securities as contemplated by this Agreement and the Offering Document,
the Company is not incurring debts or liabilities beyond its ability to
pay as such debts and liabilities mature. In computing the amount of such
contingent liabilities at any time, it is intended that such liabilities
will be computed at the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
(ii) The Company does not do business with the government of Cuba or
with any person or affiliate located in Cuba within the meaning of Florida
Statutes Section 517.075.
(jj) No forward-looking statement (within the meaning of Section 27A
of the
12
Securities Act and Section 21E of the Exchange Act) contained in the
Offering Document has been made or reaffirmed without a reasonable basis
or has been disclosed other than in good faith.
(kk) Neither the Company nor any of its subsidiaries owns any
"margin securities" as that term is defined in Regulations G and U of the
Board of Governors of the Federal Reserve System (the "Federal Reserve
Board"), and none of the proceeds of the sale of the Offered Securities
will be used, directly or indirectly, for the purpose of purchasing or
carrying any margin security, for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase or carry any margin
security or for any other purpose which might cause any of the Securities
to be considered a "purpose credit" within the meanings of Regulation G,
T, U or X of the Federal Reserve Board.
(ll) Since the date as of which information is given in the Offering
Document, except as otherwise stated therein, (i) there has been no
material adverse change or any development involving a prospective
material adverse change in the financial condition or in the earnings,
business affairs, management or business prospects of the Company or any
of its subsidiaries, whether or not arising in the ordinary course of
business, (ii) neither the Company nor any of its subsidiaries has
incurred any material liability or obligation, direct or contingent, other
than in the ordinary course of business or in relation to a transaction
between the Company and the Note Issuers, (iii) neither the Company nor
any of its subsidiaries has entered into any material transaction other
than in the ordinary course of business or in relation to a transaction
between the Company and the Note Issuers and (iv) there has not been any
change in the capital stock or long-term debt of the Company or any of its
subsidiaries, or any dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
(mm) The Company and each of the Note Issuers has the power to
submit, and pursuant to this Agreement and the Indentures, has legally,
validly, effectively and irrevocably submitted to the jurisdiction of any
U.S. Federal or state court in the Borough of Manhattan in The City of New
York, New York, and has the power to designate, appoint and empower and,
pursuant to this Agreement and the Indentures has, or in the case of the
Indentures will have, legally, validly, effectively and irrevocably
designated, appointed and empowered, an agent for service of process in
any suit or proceeding based on or arising under this Agreement or the
Indentures in any U.S. Federal or state court in the Borough of Manhattan
in The City of New York, as provided in Section 15 hereof and in the
Indentures; provided, however, that, in Thailand, no statutory law or
judicial precedent is directly applicable in respect of the submission to
the jurisdiction of a court of any authority outside Thailand, and the
validity and binding effect of such submission by the Company to the
jurisdiction of a foreign court and the waiver to objections to forum is
therefore uncertain.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the (i) Note Issuers agree to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Note Issuers, at a purchase price of 90.60% of the principal amount at
maturity thereof plus accrued interest and any increase in Accreted Value (if
any)
13
thereon from March 12, 1998, to the Closing Date, the respective principal
amounts of Senior Notes set forth opposite the names of the several Purchasers
in Schedule A hereto and (ii) the Issuers agree to sell to the Purchasers, and
the Purchasers agree, severally and not jointly, to purchase from the Issuers,
at a purchase price of $860 per Unit plus accrued interest and any increase in
Accreted Value (if any) thereon from March 12, 1998, to the Closing Date, the
respective number of Units set forth opposite the names of the several
Purchasers in Schedule A hereto.
The Issuers will deliver against payment of the purchase price the Offered
Securities in the form of one or more registered global securities in global
form (the "Global Securities") deposited with The Chase Manhattan Bank as
Book-Entry Depositary pursuant to the terms of the Note Depository Agreement,
and registered in the name of the Book-Entry Depositary, or its nominee. The
Book-Entry Depositary will issue one or more certificateless depositary
interests to the Depositary Trust Company ("DTC"). Upon confirmation by DTC that
the Book-Entry Depositary has custody of the Global Securities and upon
acceptance by DTC of the certificateless depositary interest pursuant to the
applicable Letter of Representations, DTC will record beneficial interests in
the Global Securities. Beneficial interests in the Offered Securities will be
shown on, and transfers thereof will be affected only through, records
maintained in book-entry form by DTC and its participants, including, as
applicable, Morgan Guaranty Trust Company of New York, Brussels office, as
operator of the Eurodollar System and Cedel Bank, societe anonyme. Payment for
the Offered Securities shall be made by the Purchasers in Federal (same day)
funds by wire transfer to an account previously designated to NatWest by the
Note Issuers at a bank acceptable to NatWest, at the office of Cravath, Swaine &
Moore, Worldwide Plaza, 825 Eighth Avenue, New York, New York 10019-7475 at
10:00 A.M. (New York time), on March 12, 1998, or at such other time not later
than seven full business days thereafter as NatWest and the Note Issuers may
agree, such time being herein referred to as the "Closing Date", against
delivery to the Trustee as custodian for the Book-Entry Depositary of the Global
Securities representing all the Offered Securities. The Global Securities will
be made available for checking at the above office of Cravath, Swaine & Moore or
at such other location as NatWest and the Issuers shall agree at least 24 hours
prior to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers.
(a) Each Purchaser severally represents and warrants to the Issuers
that it is an "accredited investor" within the meaning of Regulation D
under the Securities Act.
(b) Each Purchaser severally acknowledges that the Offered
Securities have not been registered under the Securities Act and may not
be offered or sold within the United States or to, or for the account or
benefit of, U.S. persons except in accordance with Regulation S or
pursuant to an exemption from the registration requirements of the
Securities Act. Each Purchaser severally represents and agrees that it has
offered and sold the Offered Securities, and will offer and sell the
Offered Securities (i) as part of its distribution at any time and (ii)
otherwise until 40 days after the later of the commencement of the
offering and the Closing Date, only in accordance with Rule 903 or Rule
144A under the Securities Act ("Rule 144A"). Accordingly, neither such
Purchaser nor its affiliates, nor any persons acting on its or their
behalf, have engaged or will engage in any directed selling efforts with
respect to the Offered Securities, and such Purchaser,
14
its affiliates and all persons acting on its or their behalf have complied
and will comply with the offering restrictions requirement of Regulation
S. Each Purchaser severally agrees that, at or prior to confirmation of
sale of the Offered Securities, other than a sale pursuant to Rule 144A,
such Purchaser will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that purchases
the Offered Securities from it during the restricted period a confirmation
or notice to substantially the following effect:
"The Securities covered hereby have not been registered under the
U.S. Securities Act of 1933 (the "Securities Act") and may not be
offered or sold within the United States or to, or for the account
or benefit of, U.S. persons (i) as part of their distribution at any
time or (ii) otherwise until 40 days after the date of the
commencement of the offering and the closing date, except in either
case in accordance with Regulation S (or Rule 144A if available)
under the Securities Act. Terms used above have the meanings given
to them by Regulation S."
Terms used in this subsection (b) have the meanings given to them by
Regulation S.
(c) Each Purchaser severally agrees that it and each of its
affiliates has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered Securities
except for any such arrangements with the other Purchasers or affiliates
of the other Purchasers or with the prior written consent of the Note
Issuers.
(d) Each Purchaser severally agrees that it and each of its
affiliates have not and will not solicit offers for an offer or sell the
Offered Securities in the United States by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c)
under the Securities Act, including, but not limited to (i) any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or
radio, or (ii) any seminar or meeting whose attendees have been invited by
any general solicitation or general advertising, or in any manner
involving a public offering within the meaning of Section 4(2) of the Act.
Each Purchaser severally agrees, with respect to resales made in reliance
on Rule 144A of any of the Offered Securities, to deliver either with the
confirmation of such resale or otherwise prior to settlement of such
resale a notice to the effect that the resale of such Offered Securities
has been made in reliance upon the exemption from the registration
requirements of the Securities Act provided by Rule 144A.
(e) Each of the Purchasers severally agrees that they have and will
solicit offers for the Offered Securities only from, and will offer the
Offered Securities only to (A) in the case of offers inside the United
States, (x) persons whom the Purchasers reasonably believe to be QIBs or,
if any such person is buying for one or more institutional accounts for
which such person is acting as fiduciary or agent, only when such person
has represented to the Purchasers that each such account is a QIB, to whom
notice has been given that such sale or delivery is being made in reliance
on Rule 144A, and, in each case, in transactions under Rule 144A or (y) a
limited number of other institutional investors reasonably believed by the
Purchasers to be Accredited Investors that, prior to their
15
purchase of the Offered Securities, deliver to the Purchasers a letter
containing the representations and agreements set forth in Section 2 above
and (B) in the case of offers outside the United States, to person other
than U.S. persons ("foreign purchasers," which term shall include dealers
or other professional fiduciaries in the United States acting on a
discretionary basis for foreign beneficial owners (other than an estate or
trust)); provided, however, that, in the case of this clause (B), in
purchasing such Offered Securities such persons are deemed to have
represented and agreed as provided under the caption "Transfer
Restrictions" contained in the Offering Document.
(f) Each of the Purchasers severally represents and agrees that (i)
it has not offered or sold and prior to the date six months after the date
of issue of the Offered Securities will not offer or sell any Offered
Securities to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995; (ii) it has
complied and will comply with all applicable provisions of the Financial
Services Act 1986 with respect to anything done by it in relation to the
Offered Securities in, from or otherwise involving the United Kingdom; and
(iii) it has only issued or passed on and will only issue or pass on in
the United Kingdom any document received by it in connection with the
issue of the Offered Securities to a person who is of a kind described in
Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom such
document may otherwise lawfully be issued or passed on.
(g) Each Purchaser severally agrees that the source of funds being
used by it to acquire the Offered Securities does not include the assets
of any "employee benefit plan" (within the meaning of Section 3 of ERISA)
or any "plan" (within the meaning of Section 4975 of the Code).
(h) Each of the Purchasers severally agrees to comply with the
applicable provisions of Rule 144A and Regulation S under the Act. Each of
the Purchasers hereby acknowledge and the Issuers and the Company and, for
purposes of the opinions to be delivered to the Purchasers pursuant to
Section 6(b) hereof, counsel to the Company and Note Issuers will rely
upon the accuracy and truth of the representations contained in this
Section 4 and each of the Purchasers hereby consent to such reliance.
(i) Each of the Purchasers severally agrees that it has not made,
and will not make, on behalf of NSM Cayman any invitation to the public in
the Cayman Islands to subscribe for any of the Offered Securities.
5. Certain Agreements of the Issuers. The Issuers agree, jointly and
severally, with the several Purchasers that:
(a) The Issuers will advise NatWest promptly of any proposal to
amend or supplement the Offering Document and will not effect such
amendment or supplementation without NatWest's consent. If, at any time
prior to the completion of
16
the resale of the Offered Securities by the Purchasers, any event occurs
as a result of which the Offering Document as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, the
Issuers promptly will notify NatWest of such event and promptly will
prepare, at their own expense, an amendment or supplement which will
correct such statement or omission. Neither NatWest's consent to, nor the
Purchasers' delivery to offerees or investors of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in
Section 6 hereto.
(b) The Issuers will furnish to NatWest copies of any preliminary
offering circular, the Offering Document and all amendments and
supplements to such documents, in each case as soon as available and in
such quantities as NatWest reasonably requests, and the Issuers will
furnish to NatWest on the Closing Date seven copies of the Offering
Document signed by a duly authorized officer of each of the Issuers. At
any time when any of the Issuers is not subject to Section 13 or 15(d) of
the Exchange Act and is not exempt from reporting pursuant to Rule
12g3-2(b) under the Exchange Act, the Issuers will promptly furnish or
cause to be furnished to each of the Purchasers upon request and, upon
request of holders and prospective purchasers of the Offered Securities,
to such holders and purchasers, copies of the information required to be
delivered to holders and prospective purchasers of the Offered Securities
pursuant to Rule 144A(d)(4) under the Securities Act (or any successor
provision thereto) in order to permit compliance with Rule 144A in
connection with resales by such holders of the Offered Securities. The
Issuers will pay the expenses of printing and distributing to the
Purchasers all such documents.
(c) The Issuers will cooperate with NatWest in arranging for the
qualification of the Offered Securities for sale and the determination of
their eligibility for investment under the laws of such jurisdictions in
the United States as NatWest designates and will continue such
qualifications in effect so long as required for the resale of the Offered
Securities by the Purchasers, provided that neither of the Issuers nor any
of the Company will be required to qualify as a foreign corporation or to
file a general consent to service of process in any such state or subject
itself to taxation in excess of a nominal dollar amount in any state where
it is not then so subject.
(d) During the period of five years after the Closing Date, the
Issuers will furnish, upon request, to NatWest and to each of the other
Purchasers, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the Issuers
will furnish, upon request, to NatWest and to each of the other Purchasers
(i) as soon as available, a copy of each report or financial statement
furnished to or filed with the Commission or any securities exchange on
which any class of securities of either of the Issuers is listed, and (ii)
from time to time, such other information concerning the Issuers as
NatWest may reasonably request.
(e) During the period of two years after the Closing Date, the
Issuers will, upon request, furnish to NatWest, each of the other
Purchasers and any holder of Offered Securities a copy of the restrictions
on transfer applicable to the Offered Securities.
17
(f) During the period of two years after the Closing Date, the
Issuers will not, and will not permit any of its affiliates (as defined in
Rule 144) to, resell any of the Offered Securities that have been
reacquired by any of them.
(g) None of the Issuers will be or become, an open-end investment
company, unit investment trust or face-amount certificate company that is
or is required to be registered under Section 8 of the Investment Company
Act, or is, or will be or become, a closed-end investment company required
to be registered, but not registered, under the Investment Company Act.
(h) The Issuers will pay all expenses (together with VAT where
applicable) incidental to the performance of their obligations under this
Agreement, the Registration Rights Agreement, the Indentures, the Note
Depositary Agreement, the Security Documents and the Warrant Agreement,
including (i) the fees and expenses of the Trustees, the Book-Entry
Depositary, the Collateral Agent, the Warrant Agent and their professional
advisers; (ii) all expenses in connection with the execution, issue,
authentication, packaging and initial delivery of the Offered Securities,
the preparation and printing of this Agreement, the Registration Rights
Agreement, the Offered Securities, the Indentures, the Note Depositary
Agreement, the Security Documents, the Warrant Agreement, the Offering
Document and amendments and supplements thereto, and any other document
relating to the issuance, offer, sale and delivery of the Offered
Securities; (iii) the cost of qualifying the Offered Securities for
trading in the Private Offerings, Resale and Trading through Automated
Linkages (PORTAL) market and the approval of the Offered Securities for
book-entry transfer by DTC, and, in each case, any expenses incidental
thereto; and (iv) the cost of any advertising approved by the Issuers in
connection with the issue of the Offered Securities. The Issuers will also
pay or reimburse the Purchasers (to the extent incurred by them) for any
expenses (including fees and disbursements of counsel) incurred in
connection with qualification of the Offered Securities for sale under the
laws of such jurisdictions in the United States as NatWest designates and
the printing of memoranda relating thereto, for any fees charged by
investment rating agencies for the rating of the Offered Securities, for
all travel expenses of the Purchasers', the Note Issuers' and the
Company's officers and employees and any other expenses of the Purchasers,
the Note Issuers and the Company in connection with attending or hosting
meetings with prospective purchasers of the Offered Securities from the
Purchasers and for expenses incurred in distributing preliminary offering
circulars and the Offering Document (including any amendments and
supplements thereto) to the Purchasers.
(i) In connection with the offering, until NatWest shall have
notified the Issuers and the other Purchasers of the completion of the
resale of the Offered Securities, neither the Issuers nor any of their
affiliates has or will, either alone or with one or more other persons,
bid for or purchase for any account in which they or any of their
affiliates have a beneficial interest in any Offered Securities or attempt
to induce any person to purchase any Offered Securities; and neither the
Issuers nor any of their affiliates will make bids or purchases for the
purpose of creating actual, or apparent, active trading in, or of raising
the price of, the Offered Securities.
18
(j) The Issuers will indemnify and hold harmless the Purchasers
against any documentary, stamp or similar issuance tax imposed by
Thailand, the Cayman Islands or the United States (or any State thereof),
including any interest and penalties, on the creation, issuance and sale
of the Offered Securities and on the execution and delivery of this
Agreement. All payments to be made by the Issuers hereunder shall be made
without withholding or deduction for or on account of any present or
future taxes, duties or governmental charges imposed by Thailand or the
Cayman Islands unless the Issuers are compelled by law to deduct or
withhold such taxes, duties or charges. In that event, the Issuers shall
pay such additional amounts as may be necessary in order that the net
amounts received after such withholding or deduction shall equal the
amounts that would have been received if no withholding or deduction had
been made; provided that the Issuers shall not pay such additional amounts
with respect to any taxes, duties or charges that would be required to be
withheld or deducted that would not have been imposed (i) but for the
existence of any present or former connection between the payee and
Thailand or the Cayman Islands, as the case may be, other than the
issuance and sale of the Offered Securities; or (ii) to the extent that
such taxes, duties or charges that would be required to be withheld or
deducted could have been reduced or eliminated by a payee's providing a
document, form or certificate at the request of the Issuers to the Issuers
or to the relevant tax authority.
(k) The Issuers will cause each Offered Security to bear the legend
set forth in the form of note attached as Exhibit 1 to the Rule
144A/Regulation S Appendix to each Indenture or the form of warrant
attached as Exhibit A to the Warrant Agreement, as the case may be, until
such legend shall no longer be necessary or advisable because the Offered
Securities are no longer subject to the restrictions on transfer described
therein.
(l) The proceeds to the Note Issuers from the offering of the
Offered Securities will be used as described in the Offering Document.
6. Conditions of the Obligations of the Purchasers. The obligations of the
several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Issuers herein, to the accuracy of the statements of officers of the Issuers
made pursuant to the provisions hereof, to the performance by the Issuers of
their respective obligations hereunder and to the satisfaction as of the Closing
Date of the following additional conditions precedent:
(a) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) a change in U.S. or international
financial, political or economic conditions or currency exchange rates or
exchange controls as would, in the judgment of NatWest, be likely to
prejudice materially the success of the proposed issue, sale or
distribution of the Offered Securities, whether in the primary market or
in respect of dealings in the secondary market, or (ii) (A) any change, or
any development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of the
Mill or the Issuers which, in the judgment of NatWest, is material and
adverse and makes it impractical or inadvisable to proceed with completion
of the offering or the sale of and payment for the Offered Securities; (B)
any downgrading
19
in the rating of any debt securities of either of the Note Issuers or any
of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Securities
Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of either of the
Note Issuers or any of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (C) any suspension or limitation of
trading in securities generally on the New York Stock Exchange or the
Nasdaq Stock Market, or any setting of minimum prices for trading on such
exchange or such market, or any suspension of trading of any securities of
the Company or of either of the Note Issuers or any of their respective
subsidiaries on any exchange or in the over-the-counter market; (D) any
banking moratorium declared by U.S. Federal, New York or Thailand
authorities; or (E) any outbreak or escalation of major hostilities in
which the United States or Thailand is involved, any declaration of war by
Congress or any other substantial national or international calamity or
emergency if, in the judgment of NatWest, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the offering or sale of and
payment for the Offered Securities.
(b) The Purchasers shall have received on the Closing Date an
opinion (satisfactory to you and counsel for the Purchasers), dated the
Closing Date, of:
(i) White & Case L.L.P., counsel for the Issuers,
substantially to the effect that:
(A) NSM (Del) has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
its jurisdiction of incorporation and has the corporate power
and authority to carry on its business as described in the
Offering Document and to own, lease and operate its
properties;
(B) NSM (Del) is duly qualified and is in good standing
as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not have a
material adverse effect;
(C) all the outstanding shares of capital stock of NSM
(Del) have been duly authorized and validly issued and are
fully paid, non-assessable and not subject to any preemptive
or similar rights;
(D) assuming due authorization by NSM Cayman and the
Company, the Offered Securities and the Exchange Securities
have been duly authorized and, in the case of the Offered
Securities, when executed and authenticated in accordance with
the provisions of the Indentures and the Warrant Agreement and
delivered to and paid for by the Purchasers in accordance with
the terms of this Agreement, or, in the case of the Exchange
Securities, when issued in exchange for the Offered Notes
20
pursuant to the terms of the Registration Rights Agreement and
the Indentures, will be entitled to the benefits of the
Indentures, the Note Depositary Agreement and the Warrant
Agreement, as applicable, and will be valid and binding
obligations of the Note Issuers and the Company, enforceable
in accordance with their terms except as (x) the
enforceability thereof may be limited by bankruptcy,
reorganization, insolvency, fraudulent conveyance or similar
laws affecting creditors' rights generally, (y) rights of
acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability and
(z) except as rights to indemnity and contributions thereunder
may be limited by state or federal securities laws or the
public policy under such laws;
(E) assuming the Guaranties have been duly authorized
and executed by the Company and, assuming due authentication
of the Offered Securities by the Trustees and upon payment and
delivery in accordance with this Agreement, the Guaranties
will constitute valid and legally binding obligations of the
Company entitled to the benefits of the Indentures and
enforceable against the Company in accordance with their
terms, except as (x) the enforceability thereof may be limited
by bankruptcy, reorganization, insolvency, fraudulent
conveyance or similar laws affecting creditors' rights
generally, (y) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of
general applicability and (z) except as rights to indemnity
and contributions thereunder may be limited by state or
federal securities laws or the public policy under such laws;
(F) the Indentures and the Note Depositary Agreement
have been duly authorized, executed and delivered by NSM (Del)
and, assuming they have been duly authorized, executed and
delivered by NSM Cayman and the Company, are valid and binding
agreements of the Issuers, enforceable against the Note
Issuers and the Company in accordance with their terms except
as (x) the enforceability thereof may be limited by
bankruptcy, reorganization, insolvency, fraudulent conveyance
or similar laws affecting creditors' rights generally, (y)
rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability and (z) except as rights to indemnity and
contributions thereunder may be limited by state or federal
securities laws or the public policy under such laws;
(G) this Agreement has been duly authorized, executed
and delivered by NSM (Del);
(H) the Registration Rights Agreement has been duly
authorized, executed and delivered by NSM (Del) and, assuming
due authorization, execution and delivery by NSM Cayman and
the Company, is a valid and binding agreement of the Issuers,
enforceable against the Issuers in
21
accordance with its terms, except as (x) the enforceability
thereof may be limited by bankruptcy, reorganization,
insolvency, fraudulent conveyance or similar laws affecting
creditors' rights generally, (y) rights of acceleration and
the availability of equitable remedies may be limited by
equitable principles of general applicability and (z) except
as to rights to indemnity and contribution hereunder may be
limited by state or federal securities laws or the public
policy under such laws;
(I) the terms of the Offered Securities, the Indentures,
the Note Depositary Agreement, the Registration Rights
Agreement and the Warrant Agreement conform in all material
respects to the descriptions thereof contained in the Offering
Document under the headings "Description of Notes and
Guaranties", "Description of the Units", "Description of the
Note Depositary Agreement; Delivery; Form", "Exchange Offer
and Registration Rights", and "Description of the Warrants";
(J) the execution, delivery and performance of this
Agreement, the Indentures, the Warrant Agreement, the Offered
Securities and the other Transaction Documents to which it is
a party by NSM (Del), compliance by NSM (Del) with all
provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not conflict
with or constitute a breach of any of the terms or provisions
of, or a default under, any material agreements of NSM (Del)
(which material agreements may be set forth in an officer's
certificate of NSM (Del) attached to such opinion) or the
charter, by-laws, memorandum and articles of association, as
the case may be, of NSM (Del), except such breaches,
violations or defaults that would not reasonably be expected
to result in, individually or in the aggregate, a Material
Adverse Effect;
(K) no further consent, approval, authorization, or
order of, or filing with any Federal, New York or Delaware
governmental agency or body or any court is required for the
Transaction Documents in connection with the issuance and sale
of the Offered Securities by NSM (Del), except that may be
required under the blue sky laws of any United States
jurisdiction in connection with the offer and distribution of
the Offered Securities by the Purchasers;
(L) to such counsel's knowledge, there are no legal or
governmental proceedings pending in any U.S. federal court
located in the State of New York or Delaware or in any New
York State court or before any U.S. federal or New York State
or Delaware governmental authority to which the Note Issuers
and the Company or any of its subsidiaries is a party or to
which any of their respective properties are subject, which
might result, singly or in the aggregate, in a Material
Adverse Effect;
22
(M) NSM (Del) has the power to submit, and has taken all
necessary corporate action to submit, to the jurisdiction of
any Federal or state court in the Borough of Manhattan, The
City of New York, New York, and to appoint CT Corporation of
New York as its authorized agent for the purposes and to the
extent described in Section 15 of this Agreement and in the
Indentures.
(N) no registration under the Securities Act of the
Offered Securities is required for the sale of the Offered
Securities to the Purchasers as contemplated by this Agreement
or for the Exempt Resales assuming that (i) the Purchaser is a
QIB, IAI or a Regulation S Purchaser, (ii) the accuracy of,
and compliance with, the Purchaser's representations and
agreements contained in Section 4 of this Agreement, (iii) the
accuracy of the representations of the Note Issuers set forth
in Sections 2(aa), 2(bb) and 2(dd) and the compliance by the
Issuers with their agreements in Section 5 of this Agreement;
(O) such counsel has no reason to believe that, as of
the date of the Offering Document or as of the Closing Date,
the Offering Document, as amended or supplemented (other than
the financial statements and other financial and statistical
information contained therein, as to which such counsel need
express no belief), if applicable, contains any untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(P) none of the Note Issuers or the Company is an
open-end investment company, unit investment trust or face
amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act, nor
are any of them a closed-end investment company required to be
registered, but not registered, thereunder; and neither of the
Note Issuers are, nor the Company is, and, after giving effect
to the offering and sale of the Offered Securities and the
application of the net proceeds thereof as described in the
Offering Document, will not be, an "investment company" as
such term is defined in the Investment Company Act;
(Q) to the best of such counsel's knowledge, except as
described in the Offering Document, there are no contracts,
agreements or understandings between the Note Issuers and any
person granting such person the right to require the Note
Issuers to file a registration statement under the Securities
Act with respect to any securities of the Note Issuers or to
require the Note Issuers to include such securities with the
Securities registered pursuant to any Registration Statement
(as defined in the Registration Rights Agreement);
(R) neither the execution, delivery or performance by
the Note
23
Issuers of this Agreement nor the issuance or sale of the
Offered Securities under the circumstances contemplated by
this Agreement nor the use of proceeds in the manner
contemplated by the Offering Document will violate Regulation
G, Regulation T, Regulation U or Regulation X of the Board of
Governors of the Federal Reserve System;
(S) the Indentures comply as to form in all material
respects with the requirements of the TIA, and the rules and
regulations of the Commission applicable to an indenture which
is qualified thereunder. It is not necessary in connection
with the offer, sale and delivery of the Offered Notes to the
Purchasers in the manner contemplated by this Agreement or in
connection with the resales to certain QIBs, or to IAIs, to
qualify the Indenture under the TIA;
(T) the statements contained in the Offering Document
under the caption "Tax Considerations United States Federal
Income Taxation," to the extent that they constitute summaries
of matters of United States federal income tax law and legal
conclusions with respects thereto, are accurate in all
material respects;
(U) the Security Documents, to the extent Collateral is
located in the United States, conform in all material respects
to the description thereof contained in the Offering Document
under the heading "Security Arrangements";
(V) on the Closing Date, upon the execution and delivery
of the Security Sharing Agreement, the Security Sharing
Agreement and the other Security Documents will create a valid
and perfected security interest in the Collateral consisting
of Accounts, Financial Assets (as defined in the Security
Agreements) credited to the Accounts, and the Security
Entitlements (as defined in the Security Agreements) of the
respective grantors therein. Such security interest in such
Collateral will be subject to no prior security interest,
lien, charge or encumbrance.
The opinion of White & Case L.L.P. described in Section 6(b)(i)
above shall be rendered to the Purchasers at the request of the Note
Issuers and shall so state therein. In giving such opinion with respect to
the matters covered by Section 6(b)(i)(O), counsel for the Note Issuers
may state that their opinion and belief are based upon their participation
in the preparation of the Offering Document and any amendments or
supplements thereto and review and discussion of the contents thereof, but
are without independent check or verification except as specified.
(ii) Maples and Calder, Asia, counsel for the Issuers,
substantially to the effect that:
(A) NSM Cayman has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
the Cayman Islands
24
and has the corporate power and authority to carry on its
business as described in the Offering Document and to own,
lease and operate its properties;
(B) NSM Cayman is duly qualified and is in good standing
as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not have a
Material Adverse Effect;
(C) all the outstanding shares of capital stock of NSM
Cayman has been duly authorized and validly issued and are
fully paid, non-assessable and not subject to any preemptive
or similar rights;
(D) all the shares of capital stock of NSM (Del) owned
by NSM Cayman are owned free and clear of any Lien;
(E) as of the Closing Date, NSM Cayman owns 100% of the
outstanding shares of NSM (Del);
(F) the Offered Securities and the Exchange Securities
have been duly authorized by NSM Cayman;
(G) the Indentures and the Note Depositary Agreement
have been duly authorized, executed and delivered by NSM
Cayman;
(H) the Registration Rights Agreement has been duly
authorized, executed and delivered by NSM Cayman;
(I) the execution, delivery and performance of this
Agreement, the Indentures, the Warrant Agreement, the Offered
Securities and the other Transaction Documents to which it is
a party, by NSM Cayman, compliance by NSM Cayman with all
provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not conflict
with or constitute a breach of any of the terms or provisions
of, or a default under, any material agreements of NSM Cayman
(which material agreements may be set forth in an officer's
certificate of NSM Cayman attached to such opinion) or the
charter, by-laws, memorandum and articles of association, as
the case may be, of NSM Cayman or any of its subsidiaries,
except such breaches, violations or defaults that would not
reasonably be expected to result in, individually or in the
aggregate, a material adverse affect;
(J) no further consent, approval, authorization, or
order of, or filing with any Cayman Islands governmental
agency or body or any court is required for the Transaction
Documents in connection with the issuance and sale of the
Offered Securities by the Company;
25
(K) to such counsel's knowledge there is no legal or
governmental proceedings pending or threatened to which the
Note Issuers and the Company or any of its subsidiaries is or
could be a party or to which any of their respective
properties are or could be subject, which might result, singly
or in the aggregate, in a material adverse effect or is
reasonably likely to materially and adversely affect the
consummation of the transactions contemplated by the
Transaction Documents;
(L) NSM Cayman has the power to submit, and has taken
all necessary corporate action to submit, to the jurisdiction
of any Federal or state court in the Borough of Manhattan, The
City of New York, New York, and to appoint CT Corporation of
New York as its authorized agent for the purposes and to the
extent described in Section 15 of this Agreement and in the
Indentures.
(M) assuming that (A) the Trustees have, at the Closing
Date, possession of the certificates representing the Pledged
NSM (Del) Stock in the State of New York and maintain
continuous possession of such Pledged NSM (Del) Stock, (B) the
Collateral Agent has, at the Closing Date, possession of the
certificates representing the Pledged NSM Cayman Stock in the
State of New York and maintains continuous possession of such
Pledged NSM Cayman Stock and (C) the Trustees are entering
into the Indentures and the Purchasers are purchasing, the
Offered Securities in good faith without notice of any adverse
claim to such Pledged NSM Stock, then after giving effect to
such purchase at the Closing Date, the Collateral Agent has or
the Trustees have, as the case may be, a valid and perfected
security interest, for the benefit of the holders of the Notes
(as defined in the Indentures), in all right, title and
interest of NSM Cayman (with respect to the shares of NSM
(Del)), in and to such Pledged NSM Stock, which security
interest has priority over any other security interest in the
Pledged NSM Stock;
(N) no withholding tax imposed under the laws of the
Cayman Islands will be payable in respect of the issuance and
sale to the Purchasers of the Securities as contemplated by
this Agreement, including the payment or crediting of any
discount, commission or fee to any Purchaser, or the resale of
the Securities by the Purchaser to U.S. residents;
(O) no stamp duty, registration or documentary taxes,
duties or similar charges are payable under the laws of the
Cayman Islands in connection with the creation, issuance, sale
and delivery to the Purchasers of the Offered Securities or
the authorization, execution and delivery of this Agreement,
the Offered Securities or the Transaction Documents to which
the Note Issuers and the Company is a party or the resale of
the
26
Offered Securities by the Purchasers to U.S. residents;
(P) a court of competent jurisdiction in the Cayman
Islands (a "Cayman Court") would give effect to the choice of
law of the State of New York ("New York Law") as the governing
law of the Transaction Documents and the Offered Securities;
(Q) a Cayman Court would give effect to the appointment
by the Company of CT Corporation System of New York as its
agent to receive service of process in the United States of
America under the Indentures, the Warrant Agreement and this
Agreement and to the provisions in the Indentures, the Warrant
Agreement and this Agreement whereby the Note Issuers submit
to the non-exclusive jurisdiction of a New York Court; and
(iii) White & Case (Thailand) Limited, counsel for the
Company, substantially to the effect that:
(A) the Company has been duly incorporated, is validly
existing as a corporation with perpetual corporate existence
under the laws of Thailand and has the corporate power and
authority to carry on its business as described in the
Offering Document and to own, lease and operate its
properties;
(B) all the Ordinary Shares to be issued in connection
with the Transactions have been duly authorized and, when
issued, will be validly issued and fully paid and not subject
to any preemptive or similar rights;
(C) as of the Closing Date, the Company owns 100% of the
outstanding shares of NSM Cayman;
(D) all the issued and outstanding shares of each of the
Company's subsidiaries are owned, directly or through
subsidiaries, by the Company free and clear of any Lien (other
than the Liens created by the Security Documents);
(E) the Offered Securities and the Exchange Securities,
to the extent authorization of their issuance or the guarantee
of their obligations requires action by the Company, have been
duly authorized by the Company;
(F) the Guaranties have been duly authorized and
executed by the Company;
(G) the Security Documents, to the extent Collateral is
located in Thailand, conform in all material respects to the
description thereof contained in the Offering Document under
the heading "Security Arrangements";
27
(H) on the Closing Date, upon the execution and delivery
of the Security Sharing Agreement, the Security Sharing
Agreement and the other Security Documents will create valid,
perfected and enforceable security interests in the Closing
Date Collateral, (subject to the filing and registration of
land and buildings, Registrable Machinery with the Central
Marketing Office in Thailand and provided that the Book-Entry
Depositary is the pre-registered holder of the Offered Notes,
securing the Offered Notes, Exchange Securities and the
Guaranties in accordance with the terms thereof and the
Pledged NSM Stock and the Closing Date Collateral will be free
and clear of all liens, except those liens created by or
pursuant to the Security Documents or such liens which would
not, individually or in the aggregate, materially interfere
with the liens created under the Security Documents; provided,
however, that the Civil and Commercial Code of Thailand and
the Bankruptcy Act of Thailand expressly prescribe the rank of
creditors, and such prescribed rank cannot be varied by any
contractual arrangement. There is no reported Supreme Court
judgment as to the legal validity of similar type of
arrangements to those under the terms of subordination of
indebtedness as specified in the Notes;
(I) the Indentures, the Note Depositary Agreement and
the Warrant Agreement have been duly authorized, executed and
delivered by the Company;
(J) the Registration Rights Agreement has been duly
authorized, executed and delivered by the Company;
(K) the Project Documents have been duly authorized,
executed and delivered by the Company and (assuming due
authorization, execution and delivery by the counterparties
thereto) constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with
their terms, except as (x) the enforceability thereof may be
limited by bankruptcy, reorganization, insolvency, fraudulent
conveyance or similar laws affecting creditors' rights
generally and (y) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles
of general applicability. The statements in the Offering
Document insofar as they describe the provisions of the
Project Documents constitute fair summaries thereof, accurate
in all material respects.
(L) the Warrants are convertible into the underlying
ordinary shares of the Company ("Ordinary Shares") in
accordance with their terms; such underlying shares initially
issuable upon exercise of such Warrants have been duly
authorized and reserved for issuance upon such exercise and,
when issued upon such exercise, will be validly issued, fully
paid; the Private Shares have been duly authorized and validly
issued, are
28
fully paid and conform in all material respects to the
description thereof contained in the Offering Document; and,
to the knowledge of such counsel, the shareholders of the
Company have no preemptive or similar rights with respect to
the Warrants, the underlying Ordinary Shares or the Private
Shares;
(M) the execution, delivery and performance of this
Agreement, the Indentures, the Warrant Agreement, the Offered
Securities and the other Transaction Documents by the Company,
compliance by the Company with all provisions hereof and
thereof and the consummation of the transactions contemplated
hereby and thereby will not conflict with or constitute a
breach of any of the terms or provisions of, or a default
under, any material agreements of the Company (which material
agreements may be set forth in an officer's certificate of the
Company attached to such opinion) or the charter, by-laws,
memorandum and articles of association, as the case may be, of
the Company or any of its subsidiaries, except such breaches,
violations or defaults that would not reasonably be expected
to result in, individually or in the aggregate, a Material
Adverse Affect;
(N) although there is no Thai law or judicial precedent
directly applicable to the issue, such counsel believes that
the indemnification and contribution provisions set forth in
Section 7 of this Agreement do not contravene the public order
or good morals of the people of Thailand;
(O) except as disclosed in the Offering Document, to
such counsel's knowledge there is no legal or governmental
proceedings pending or threatened to which the Company or any
of its subsidiaries is or could be a party or to which any of
their respective properties are or could be subject, which
might result, singly or in the aggregate, in a material
adverse effect or is reasonably likely to materially and
adversely affect the consummation of the transactions
contemplated by the Transaction Documents;
(P) based solely on an attached Officer's Certificate,
the Company has good and valid title in and to the land and
buildings comprising the Mill, free and clear of Liens
(subject, however, only to any Lien that may be created by or
pursuant to the Security Documents);
(Q) the Company has the power to submit, and has taken
all necessary corporate action to submit, to the jurisdiction
of any Federal or state court in the Borough of Manhattan, The
City of New York, New York, and to appoint CT Corporation of
New York as its authorized agent for the purposes and to the
extent described in Section 15, of this Agreement and in the
Indentures;
(R) such counsel has no reason to believe that, as of
the date of
29
the Offering Document or as of the Closing Date, the Offering
Document, as amended or supplemented (other than the financial
statements and other financial and statistical information
contained therein, as to which such counsel need express no
belief), if applicable, contains any untrue statement of a
material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(S) no stamp duty, registration or documentary taxes,
duties or similar charges are payable under the laws of
Thailand in connection with the creation, issuance, sale and
delivery to the Purchasers of the Offered Securities or the
authorization, execution and delivery of this Agreement, the
Offered Securities or the Transaction Documents to which the
Note Issuers and the Company is a party or the resale of the
Offered Securities by the Purchasers to U.S. residents, except
for the transfer of Warrants if the instrument of transfer is
executed in Thailand;
(T) neither the Company nor the Note Issuers, nor any of
their respective assets, are entitled to immunity (or any
similar defense) from suit, execution, attachment or other
legal process in Thailand;
(U) it is not necessary (A) in order to enable the
Purchasers to exercise or enforce their rights under this
Agreement in Thailand, (B) to enable the Collateral Agent, the
Book-Entry Depositary the Trustee or any holder of Offered
Securities to exercise or enforce any of its rights under any
of the Indentures, the Offered Securities, the Warrant
Agreement and the Security Documents in Thailand or (C) by
reason of the entry into and/or the performance of this
Agreement, the Indentures, the Warrant Agreement or the
Offered Securities that the Purchasers, the Trustees or any
holder of Offered Securities should be licensed, qualified,
authorized or entitled to do business in Thailand;
(V) a court of competent jurisdiction in Thailand (a
"Thai Court") would recognize the choice of law of the State
of New York ("New York Law") as the governing law in respect
of essential elements and effects of the Transaction Documents
and the Offered Securities to the extent that the application
of such laws: (i) are proven to the satisfaction of the courts
of Thailand (which satisfaction is within the discretion of
the Court of Thailand); and (ii) are not considered contrary
to the public order or good morals of the people of Thailand,
the scope of which are issues to be interpreted by the Supreme
Court of Thailand;
(W) a Thai Court would give effect to the appointment by
the Company of CT Corporation System of New York as its agent
to receive service of process in the United States of America
under the Indentures, the Warrant Agreement and this
Agreement; however, no statutory law or judicial precedent is
directly applicable to the provisions in the Indentures,
30
the Warrant Agreement and this Agreement whereby the Note
Issuers submit to the non-exclusive jurisdiction of a New York
Court and the validity and binding effect of such submission
is therefore uncertain;
(X) any judgment obtained against the Company in the
courts of New York in respect of any sum payable under the
Transaction Documents, the Offered Securities and the Offering
Document would not itself be enforceable by the courts of
Thailand (whether by suit on the judgment or by registration)
but may be admissible as evidence in any new legal proceedings
instituted in the courts of Thailand in Thailand against the
Company;
(Y) the statements under the captions "Risk Factors -
Political and Economic Factors", "Risk Factors - Currency
Regulation", "Risk Factors - NTS Pledge; Substantial Ownership
by Pledgee or Successor", "Risk Factors - No Assurance of
Adequate Collateral; Shared Collateral", "Risk Factors
Enforcement of the Mortgages", "Risk Factors - Thai Bankruptcy
Law", "Risk Factors - Lack of Enforcement of Foreign
Judgments", "Business - Environmental Matters", "Business -
Contingencies and Legal Proceedings", "Description of Material
Agreements", "Description of Notes and Guaranties -
Enforceability of Judgments", "Security Arrangements", "Tax
Considerations", "Thai Taxation" in the Offering Document,
insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly
present in all material respects such legal matters, documents
and proceedings;
(Z) all security interests in the Closing Date
Collateral, other than those created pursuant to the Security
Documents or contemplated pursuant to the Security Sharing
Agreement, have been terminated;
(AA) the statements contained in the Offering Document
under the caption "Thai Taxation," to the extent that they
constitute matters of Thai income tax law and legal
conclusions with respect thereto, are accurate in all material
respects;
(BB) any judgment or order given in the courts of
Thailand for the enforcement of any of the Transaction
Documents, within the discretion of the courts of Thailand,
may be expressed either in Baht or in an appropriate foreign
currency. Under Section 170 of the Civil and Commercial Code
of Thailand, where a money debt is expressed in a foreign
currency, payment may be made in Thai currency. In such case,
conversion will be based on the current rate of exchange at
the place of payment at the time of payment. Such counsel
expresses no opinion on any provision concerning currency
indemnity contained therein; and
(CC) any agreement attempting to impose an obligation on
a
31
party to pay for legal fees exceeding the sum that may be
awarded by the courts of Thailand is invalid. The courts of
Thailand have discretion to award legal fees and court costs
in accordance with the rate(s) specified in the Civil
Procedure Code of Thailand. The validity of any provision of
this Agreement with respect to the Company's obligations to
reimburse legal fees in the event of court cases in Thailand
is uncertain.
The opinion of White & Case (Thailand) Limited described in Section
6(b) above shall be rendered to the Purchasers at the request of the Note
Issuers and shall so state therein. In giving such opinion with respect to
the matters covered by Section 6(b)(iii)(S), counsel for the Note Issuers
may state that their opinion and belief are based upon their participation
in the preparation of the Offering Document and any amendments or
supplements thereto and review and discussion of the contents thereof, but
are without independent check or verification except as specified.
(c) The Purchasers shall have received from Cravath, Swaine & Moore,
counsel for the Purchasers, such opinion, dated the Closing Date, with
respect to the validity of the Offered Securities, the Offering Document,
the exemption from registration for the offer and sale of the Offered
Securities by the Note Issuers to the several Purchasers and the initial
resales by the several Purchasers as contemplated hereby and other related
matters as NatWest may require, and the Note Issuers shall have furnished
to such counsel such documents as they request for the purpose of enabling
them to pass upon such matters. In rendering such opinion, Cravath, Swaine
& Moore may rely as to all matters governed by the laws of Thailand upon
the opinion of Chandler and Thong-ek.
(d) The Purchasers shall have received a certificate, dated the
Closing Date, of the Managing Director and a principal financial or
accounting officer of each of the Note Issuers in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that (i) the representations and warranties of the applicable Note Issuer
and the Company in this Agreement are true and correct, (ii) the
applicable Note Issuer and the Company have complied with all agreements
and satisfied all conditions on their respective parts to be performed or
satisfied hereunder at or prior to the Closing Date, (iii) the execution,
delivery and performance of the Indentures, the Security Documents, the
Warrant Agreement, this Agreement, the Note Depositary Agreement, the
Project Documents and the Registration Rights Agreement, and the issuance
and sale of the Offered Securities and the issuance and sale of the
Debentures and the Private Shares and compliance with the terms and
provisions thereof will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any agreement or
instrument to which the Note Issuers or the Company is a party or by which
the Note Issuers or the Company is bound or to which any of the properties
of the Note Issuers or the Company is subject, (iv) all shares of capital
stock of the Note Issuers are legally owned, directly or indirectly, by
the Company free and clear of any pledge, lien, security interest, charge,
claim, equity or encumbrance of any kind, except for the security
interests created by or pursuant to the Security Documents or otherwise
contemplated by the Security Documents, (v) there are no outstanding
rights, warrants or options to acquire, or instruments convertible into or
exchangeable for, any shares of the
32
Note Issuers or the Company and (vi) there has occurred no development or
event involving a prospective material adverse change in the condition
(financial or other), business, properties or results of operations of the
Note Issuers and the Company taken as a whole.
(e) Concurrently with the issue and sale of the Offered Securities,
the Security Documents to be executed and delivered on the Closing Date
shall have been duly authorized, executed and delivered by the Note
Issuers and the Company (to the extent a party thereto); all steps
necessary to perfect the security interests created pursuant to the
Security Documents, including the termination of any liens (including any
liens held by the Thai Lenders) created over the Closing Date Collateral
(other than pursuant to the Security Documents or otherwise contemplated
by the Security Documents), shall have been completed; and the Purchasers
shall have received conformed counterparts of each such Security Document
and all other documents and agreements entered into or received thereunder
in connection with each such Security Document and the termination of any
such existing liens.
(f) NSM Cayman and the Company shall have delivered to the Trustees
or the Collateral Agent, as applicable, the stock certificates of NSM
(Del) and of NSM Cayman, respectively, evidencing the Pledged NSM Stock
pledged to the Trustees or charged to the Collateral Agent, as they case
may be, pursuant to the Security Documents, together with stock powers
executed in blank. Each of NSM Cayman and the Company shall have delivered
to the Trustees or the Collateral Agent, as the case may be, its
irrevocable proxy pursuant to the Security Documents with respect to the
Pledged NSM Stock.
(g) The issue and sale of the Senior Notes and of the Units by the
Issuers shall be consummated concurrently in accordance with the terms of
this Agreement and shall conform in the judgment of the Purchasers to the
descriptions thereof contained in the Offering Document.
(h) Concurrently with or prior to the issue and sale of the Offered
Securities, the Project Documents shall have been duly authorized,
executed and delivered by all parties thereto and shall conform in the
judgment of counsel to the Purchasers to the descriptions thereof
contained in the Offering Document.
(i) Concurrently with or prior to the issue and sale of the Offered
Securities, the CFA Amendment (as defined in the Offering Document) and
the Security Sharing Agreement shall have been duly authorized, executed
and delivered by the Company's Thai Lenders, and shall conform in the
judgment of counsel to the Purchasers to the descriptions thereof
contained in the Offering Document.
(j) Concurrently with or prior to the issue and sale of the Offered
Securities, the Working Capital Facility (as defined in the Offering
Document) in an aggregate available amount of at least $125 million shall
have been duly authorized, executed and delivered by all parties thereto
and shall conform in the judgment of counsel to the Purchasers to the
description thereof contained in the Offering Document.
33
(k) Concurrently with or prior to the issue and sale of the Offered
Securities, the Company shall have consummated the issuance and sale of
the Debentures and the Private Shares, in each case on terms and
conditions reasonably satisfactory to the Purchasers.
(l) Concurrently with or prior to the issue and sale of the Offered
Securities, the shareholders of the Company shall have duly authorized the
issuance of the Warrants and the underlying Ordinary Shares.
(m) The Purchasers shall be reasonably satisfied on the Closing Date
with the level of all fees and expenses payable by the Issuers.
(n) The Purchasers shall have received a letter, dated the date of
this Agreement, of KPMG, in agreed form, confirming that they are
independent certified public accountants in accordance with the rules
established by The Board of Supervision of Auditing Practices, Ministry of
Commerce in Thailand ("Rules and Regulations") and stating to the effect
that:
(i) in their opinion the financial statements examined by them
and included in the Offering Document comply as to form in all
material respects with generally accepted accounting principles in
Thailand and the related published Rules and Regulations;
(ii) on the basis of a reading of the latest available interim
financial statements of the Company, inquiries of certain officials
of the Company who have responsibility for financial and accounting
matters and other specified procedures, nothing came to their
attention that caused them to believe that:
(A) at the date of the latest available consolidated
balance sheet read by KPMG, or at a subsequent specified date
not more than five business days prior to the date of this
Agreement, there was any change in the capital stock or
paid-in capital, increase in long-term debt or any decreases
in consolidated net current assets or stockholders' equity of
the consolidated companies as compared with amounts shown on
the September 30, 1997, audited consolidated balance sheet
included in the Offering Document; or
(B) for the period of the closing date of the latest
audited consolidated statement of operations included in the
Offering Document to the closing date of the latest available
unaudited consolidated statement of operations read by KPMG
there were any decreases, as compared with the corresponding
period in the preceding year, in consolidated operating
revenues or in the total or per-share amounts of net loss,
except in all cases set forth in clauses (A) and (B) above for
changes, increases or decreases which the Offering Document
discloses have occurred or may occur or which are described in such
letter; and
34
(iii) they have compared specified Baht amounts (or
percentages derived from such Baht amounts) and other financial
information contained in the Offering Document (in each case to the
extent that such Baht amounts, percentages and other financial
information are derived from the general accounting records of the
Company and its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found such Baht
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such
letter.
(o) The Issuers shall have received from the Bank of Thailand and
other appropriate Thailand authorities such waivers or approvals of
currency exchange controls and repatriation of funds restrictions as the
Purchasers shall deem necessary to permit the consummation of the
transactions contemplated by the Offering Document in the manner described
therein, and such waiver or approval shall be in full force and effect.
(p) Each of the entities described in the Offering Document as
making equity investments (whether primary or secondary) in the Company
shall have completed such equity investment on or prior to the Closing
Date.
The Issuers will furnish the Purchasers with such conformed copies of such
opinions, certificates, letters and documents as the Purchasers request. NatWest
may in its sole discretion waive on behalf of the Purchasers compliance with any
conditions to the obligations of the Purchasers hereunder, whether in respect of
the Closing Date or otherwise.
7. Indemnification and Contribution.
(a) The Note Issuers and the Company hereby jointly and severally
indemnify and hold harmless each Purchaser against any losses, claims,
damages or liabilities, joint or several, to which such Purchaser may
become subject, under the Securities Act or the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of any untrue statement or alleged untrue
statement of any material fact contained in the Offering Document, or any
amendment or supplement thereto, or any related preliminary offering
circular or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and will reimburse each
Purchaser for any legal or other expenses reasonably incurred by such
Purchaser in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred;
provided, however, that neither the Note Issuers nor the Company will be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information
furnished to the Note Issuers or the Company by any Purchaser through
NatWest specifically for use therein, it being understood and agreed that
the only such information consists of the information described as such in
subsection (b) below; provided
35
further, that with respect to any such untrue statement or omission made
in the preliminary offering circular, the indemnity agreement contained in
this Section 7 shall not inure to the benefit of any such Purchaser from
whom the person asserting any such losses, claims, damages or liabilities
purchased the Offered Securities concerned if both (A) a copy of the
Offering Document was not sent or given to such person at or prior to the
written confirmation of the sale of such Offered Securities to such
person, and (B) the untrue statement or omission in the preliminary
offering circular was corrected in the Offering Document unless, in either
case, such failure to deliver the Offering Document was a result of
noncompliance by any of the Issuers with Section 5(b).
(b) Each of the Purchasers hereby severally and not jointly
indemnifies and holds harmless the Note Issuers and the Company against
any losses, claims, damages or liabilities to which the Note Issuers or
the Company may become subject, under the Securities Act or the Exchange
Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
the Offering Document, or any amendment or supplement thereto, or any
related preliminary offering circular, or arise out of or are based upon
the omission or the alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon
and in conformity with written information furnished to the Note Issuers
or the Company by such Purchaser through NatWest specifically for use
therein, and will reimburse any legal or other expenses reasonably
incurred by the Note Issuers or the Company in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that
the only such information furnished by any Purchaser consists of the
following information in the Offering Document furnished on behalf of each
Purchaser: the last paragraph at the bottom of the cover page concerning
the terms of the offering by the Purchasers, the legend concerning
over-allotments and stabilizing on the first paragraph of page ii and,
under the caption "Plan of Distribution", (i) the second and third
sentence of the second paragraph thereunder, (ii) the fourth paragraph
thereunder and (iii) the fourth sentence of the ninth paragraph
thereunder; it being expressly agreed and acknowledged by the Note Issuers
and the Company that the Purchasers have not provided, and shall bear no
responsibility or liability under this paragraph (b) or otherwise for, the
information contained under the caption "Certain Financial Projection
Information" in the Offering Document.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under subsection (a)
or (b) above. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified,
36
to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after notice
from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable
to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject
matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or
(b) above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Note Issuers or the Company on the one hand and
the Purchasers on the other from the offering of the Offered Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the
relative fault of the Note Issuers or the Company on the one hand and the
Purchasers on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities as well as
any other relevant equitable considerations. The relative benefits
received by the Note Issuers or the Company on the one hand and the
Purchasers on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses)
received by the Note Issuers bear to the total discounts and commissions
received by the Purchasers from the Note Issuers under this Agreement. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Note Issuers, the Company or the Purchasers
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding the provisions of this subsection
(d), no Purchaser shall be required to contribute any amount in excess of
the amount by which the total price at which the Offered Securities
purchased by it were resold exceeds the amount of any damages which such
Purchaser has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. The Purchasers'
obligations in this subsection (d) to contribute are several in proportion
to their respective purchase obligations and not joint.
(e) The obligations of the Note Issuers and the Company under this
Section shall
37
be in addition to any liability which the Note Issuers and the Company may
otherwise have and shall extend, upon the same terms and conditions, to
each person, if any, who controls any Purchaser within the meaning of the
Securities Act or the Exchange Act; and the obligations of the Purchasers
under this Section shall be in addition to any liability which the
respective Purchasers may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls the Note
Issuers and the Company within the meaning of the Securities Act or the
Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers default in their
obligations to purchase Offered Securities hereunder and the total principal
amount of the Senior Notes, or the total number of Units, that such defaulting
Purchaser or Purchasers agreed but failed to purchase does not exceed 10% of the
aggregate principal amount of the Senior Notes, or 10% of the aggregate number
of Units, NatWest may make arrangements satisfactory to the Note Issuers for the
purchase of such Offered Securities by other persons, including any of the
Purchasers, but if no such arrangements are made by the Closing Date, the
non-defaulting Purchasers shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Purchasers agreed but failed to purchase. If any Purchaser or
Purchasers so default and the total principal amount of the Senior Notes, or the
total number of Units, with respect to which such default or defaults occur
exceeds 10% of the aggregate principal amount of the Senior Notes, or 10% of the
aggregate number of Units, and arrangements satisfactory to NatWest and the Note
Issuers for the purchase of such Offered Securities by other persons are not
made within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Purchaser or the Note Issuers or the
Company, except as provided in Section 9. As used in this Agreement, the term
"Purchaser" includes any person substituted for a Purchaser under this Section.
Nothing herein will relieve a defaulting Purchaser from liability for its
default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Note Issuers, the Company or their respective officers and of the several
Purchasers set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Purchaser, the Note Issuers, the
Company or any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the Offered
Securities. If this Agreement is terminated pursuant to Section 8 or if for any
reason the purchase of the Offered Securities by the Purchasers is not
consummated, the Issuers shall remain responsible for the expenses to be paid or
reimbursed by any of them pursuant to Section 5 and the respective obligations
of the Note Issuers, the Company and the Purchasers pursuant to Section 7 shall
remain in effect. If the purchase of the Offered Securities by the Purchasers is
not consummated for any reason other than solely because of the termination of
this Agreement pursuant to Section 8 or the occurrence of any event specified in
clause (c) of Section 6, the Note Issuers or the Company will reimburse the
Purchasers for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Purchasers will be mailed, delivered or telegraphed and confirmed to the
Purchasers, c/o Gleacher NatWest Inc., 660 Madison Avenue, New York, NY 10021,
Attention: Mr. David Wheeler, or,
38
if sent to the Note Issuers or the Company, will be mailed, delivered or
telegraphed and confirmed to any of them at Chonburi Industrial Estate (Bowin),
358 M006, Highway 331, Sriarcha, Chonburi 20230 Thailand, Attention: Mr. John W.
Schultes; provided, however, that any notice to a Purchaser pursuant to Section
7 will be mailed, delivered or telegraphed and confirmed to such Purchaser.
11. Successors. This Agreement will enure to the benefit of and be binding
upon the parties hereto and their respective successors and the controlling
persons referred to in Section 7, and no other person will have any right or
obligation hereunder, except that holders of Offered Securities shall be
entitled to enforce the agreements for their benefit contained in the second and
third sentences of Section 5(b) hereof against the Note Issuers or the Company
as if such holders were parties thereto.
12. Representation of Purchasers. NatWest will act for the several
Purchasers in connection with this offering and any action taken by NatWest will
be binding upon all the Purchasers.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to principles
of conflicts of laws.
15. Submission to Jurisdiction. The Issuers hereby submit to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby. The Issuers
irrevocably appoint CT Corporation System of New York, as their authorized agent
in the Borough of Manhattan in The City of New York upon which process may be
served in any such suit or proceeding, and agree that service of process upon
such agent, and written notice of said service to the Note Issuers or the
Company, as the case may be, by the person serving the same to the address
provided in Section 10, shall be deemed in every respect effective service of
process upon the Note Issuers or the Company, as the case may be, in any such
suit or proceeding. The Issuers further agree to take any and all action as may
be necessary to maintain such designation and appointment of such agent in full
force and effect for a period of 10 years from the date of this Agreement.
16. Judgment Currency. The obligation of the Issuers in respect of any sum
due to any Purchaser shall, notwithstanding any judgment in a currency other
than United States dollars, not be discharged until the first business day,
following receipt by such Purchaser of any sum adjudged to be so due in such
other currency, on which (and only to the extent that) such Purchaser may in
accordance with normal banking procedures purchase United States dollars with
such other currency; if the United States dollars so purchased are less than the
sum originally due to such Purchaser hereunder, the Issuers agree, as a separate
obligation and notwithstanding any such judgment, to indemnify, jointly and
severally, such Purchaser against such loss. If the United States dollars so
purchased are greater than the sum originally due to such Purchaser hereunder,
such Purchaser agrees to pay to the Note Issuers or the Company, as the case may
be, an amount equal to the excess of the dollars so purchased over the sum
originally due to such Purchaser hereunder.
If the foregoing is in accordance with the Purchasers' understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement among the Note Issuers, the Company
and the several Purchasers in accordance with its terms.
Very truly yours,
NSM STEEL (DELAWARE) INC.
By: /s/ Sawasdi Horrungruang
--------------------------
Title: Chairman
NSM STEEL COMPANY, LTD.
By: /s/ Sawasdi Horrungruang
--------------------------
Title: Chairman
NAKORNTHAI STRIP MILL PUBLIC
COMPANY LIMITED
By: /s/ Sawasdi Horrungruang
--------------------------
Title: Chairman
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written
NATWEST CAPITAL MARKETS LIMITED
MCDONALD & COMPANY SECURITIES, INC.
PAINEWEBBER INCORPORATED
ECT SECURITIES CORP.
by NATWEST CAPITAL MARKETS LIMITED
By: /s/ A.R. Irby
------------------
Title: Director
SCHEDULE A
Principal Amount of Number
Purchasers Senior Notes of Units
- ---------- ------------------- --------
NatWest Capital Markets Limited...... $186,750,000 152,625
McDonald & Company Securities, Inc... 22,410,000 18,315
PaineWebber Incorporated............ 24,900,000 20,350
ECT Securities Corp.................. 14,940,000 12,210
------------ -------
Total........ $249,000,000 203,500
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